Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.486 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,
Petitioner, v. Rebecca Adducci, et al.,

Case No. 20-10829
Judith E. Levy United States District Judge
Mag. Judge Anthony P. Patti

Respondents. ________________________________/
OPINION AND ORDER GRANTING IN PART PETITIONER’S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER [2]
This is an emergency petition challenging Janet Malam’s mandatory detention pursuant to 8 U.S.C. § 1226(c) because of danger posed to her by the COVID-19 pandemic. Petitioner claims that her continued detention violates her Fifth Amendment rights by exposing her to substantial risk of illness and death. She requests a temporary restraining order (TRO) requiring that Respondents release her on her own recognizance and refrain from re-detaining her for the pendency of her immigration proceedings.

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For the foregoing reasons, the Court GRANTS IN PART this
emergency application for relief.
BACKGROUND
Petitioner Janet Malam, born in the United Kingdom, is a lawful
permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to
the United States in 1967 at the age of four and is now fifty-six years old.
(Id.) Petitioner has been detained since March 4, 2020, in the Calhoun
County Correctional Facility1 in conjunction with removal proceedings at
the Detroit Immigration Court. (Id.) She brings suit against the following
Respondents: Rebecca Adducci, the Detroit District Director of United
States Immigration and Customs Enforcement (ICE); Matthew Albence,
Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S.
1 The parties each refer to the Calhoun County Correctional Facility with different terminology. See Jail/Corrections Division, Calhoun County, https://www.calhouncountymi.gov/departments/sheriffs_office/jail.php (last visited Apr. 5, 2020) (“Calhoun County Correctional Facility”); Detention Facilities, U.S. Immigrations and Customs Enforcement, https://www.ice.gov/detentionfacility/calhoun-county-correctional-center (last visited Apr. 5, 2020) (“Calhoun County Correctional Center”); Calhoun County Jail, Google Maps, at https://www.google.com/maps/place/Calhoun+County+Jail/@42.3166565,85.1757947,15z/data=!4m2!3m1!1s0x0:0x4f8faa7bcca370c4?sa=X&ved=2ahUKEwiR wvHM3NHoAhUQmHIEHWeUCl4Q_BIwCnoECA4QCA (last visited Apr. 5, 2020) (“Calhoun County Jail”). The Court will refer to Petitioner’s current place of detention as the Calhoun County Correctional Facility or CCCF.
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Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). (Id.)
Petitioner alleges that she suffers from a number of health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia; essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner’s extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
Because Petitioner has committed two or more crimes involving moral turpitude, her detention is mandatory pursuant to 28 U.S.C. § 1226(c).2 On March 30, 2020, Petitioner filed a petition requesting
2 Petitioner does not specify the nature of these crimes in either her petition or this application. In their response to Petitioner’s application for a temporary restraining order, Respondents note that Petitioner’s charge of removal is based on a 2003 Michigan state conviction of Larceny from the Person, Mich. Comp. Laws § 750.737, a 2008 conviction of Larceny $100 or Less in violation of a Taylor City, Michigan ordinance, a 2009 conviction of Retail Fraud in violation of a City of Flat Rock, Michigan ordinance, a 2011 conviction of Attempted Simple Larceny in violation of a City of Tyler, Michigan ordinance, and a 2012 conviction of Retail Fraud
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emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” (Id. at PageID.17.) Petitioner simultaneously filed an Application for Temporary Restraining Order requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility. (ECF No. 2.)
For the reasons stated below, the Court GRANTS Petitioner’s application for a temporary restraining order requiring her immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. LAW AND ANALYSIS
I. Jurisdiction
3rd Degree $200 or less in violation of a City of Southgate, Michigan ordinance. (ECF No. 11-1, PageID.192.)
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“Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). All courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). A court must determine whether it has jurisdiction before deciding a cause of action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998).
Petitioner pleads that “[t]he Court has subject matter jurisdiction over this case pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. §1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus).” (ECF No. 1, PageID.5.) The Court has jurisdiction to adjudicate Petitioner’s claims under 28 U.S.C. § 2241. Moreover, even if
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Petitioner’s claims could not be heard under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides an independent source of jurisdiction.
A. 28 U.S.C. § 2241 Jurisdiction 28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr, 533 U.S. 289, 298 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) In 2001, the Supreme Court recognized the continued viability of the writ in cases involving the detention of noncitizens: “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). In 2018, the Court ruled on the merits of a habeas petition challenging the validity of pre-removal detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
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Respondents claim, citing Luedtke v. Berkebile, that the Court lacks jurisdiction to grant habeas relief because 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Though the Supreme Court has left as an open question “the reach of the writ with respect to claims of unlawful conditions of treatment or confinement,” Boumedienne v. Bush, 553 U.S. 732, 792 (2006), the Sixth Circuit, conversely, has held that “a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of . . . confinement.” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001). In 2018, the Sixth Circuit reiterated this holding, affirming a district court that dismissed a § 2241 petition raising an Eighth Amendment challenge to subpar prison conditions because such a claim must be brought in a civil-rights action such as one under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510 (6th Cir. Sep. 24, 2018); but see Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (“Habeas corpus tests not only the fact but also the form of detention.”) (internal citation
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omitted); Roba v. U.S., 604 F.2d 215 (2d Cir. 1979) (holding that § 2241 petition may be used to challenge conditions of confinement).
The Respondents argue that “there is no dispute that Petitioner brings a challenge to the conditions of her confinement.” (ECF No. 11, PageID.175.) On its face, the application appears to concern Petitioner’s conditions of confinement. Petitioner titles her claim for relief: “Freedom from Cruel Treatment and Conditions of Confinement.” (ECF No. 1, PageID.16.) But Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.
Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas. In Nelson v. Campbell, the Supreme Court held that a death-row inmate’s challenge to the method of his upcoming execution constituted a challenge to the conditions—not the fact or duration—of his execution, and therefore his claim fell outside the “core”
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of habeas corpus. 541 U.S. 637, 644-45 (2004). However, the Court speculated that if the challenged method “were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives,” there would be a “stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself,” bringing the claim into the core of habeas corpus. Id. at 645. In Adams v. Bradshaw, the Sixth Circuit relied on Nelson to uphold habeas jurisdiction over a claim where a petitioner challenged the method of his execution but did not concede that any acceptable alternative existed. 644 F.3d 481, 483 (6th Cir. 2011) (“Adams has not conceded the existence of an acceptable alternative procedure. . . . Thus, Adams's lethal-injection claim, if successful, could render his death sentence effectively invalid.”) Here, Petitioner has not conceded the existence of acceptable alternative conditions of her confinement; her Fifth Amendment claim, if successful, would render her continued detention invalid.
In contrast to this case, claims which the Sixth Circuit has held noncognizable in habeas are those in which the petitioner seeks relief other than release from custody: See Solano-Moreta, 2018 WL 6982510,
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at *1 (seeking transfer); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (challenge to lack of compensation and conditions of work performed in prison); Hodges v. Bell, 170 F. App’x 389, 390 (6th Cir. 2006) (seeking amelioration of conditions or transfer to mental health facility); Sullivan v. United States, 90 Fed. App’x 862, 862 (6th Cir. 2004) (seeking medical treatment in prison); Lutz v. Hemingway, 476 F.Supp. 2d 715, 718 (E.D. Mich. 2007) (seeking restoration of mail privileges in prison); see also Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (seeking transfer). Indeed, in Preiser v. Rodriguez, the Supreme Court distinguished conditions of confinement claims from claims seeking immediate or speedier release. 411 U.S. 475, 500 (1973) (distinguishing habeas case seeking good-time credits from § 1983 conditions of confinement cases on the grounds that “none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.”)
Although Petitioner here titles her claim for relief “Freedom from Cruel Treatment and Conditions of Confinement,” her Petition is a challenge to the continued validity of her confinement, regardless of its
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conditions. Petitioner argues that the only adequate relief is her release from confinement. As Petitioner explains,
[S]ocial distancing and hygiene measures [are] Janet’s only defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the environment of an immigration detention center, where Janet shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers. (ECF No. 1, PageID.16.) At the Court’s March 31, 2020 status conference for this case, counsel for Respondents conceded that social distancing between prisoners of at least six feet would be impossible at the Calhoun County Correctional Facility. This concession supports the conclusion of multiple doctors and public health experts: that “[t]he only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon)); the only way to “prevent serious illness including death” in ICE facilities is to “release all people with risk factors.” (ECF No. 20-3, PageID.374 (Declaration of Dr. Robert B. Greifingert).)
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In this case, Petitioner does not take issue with the steps taken at the Calhoun County Correctional Facility to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
B. 28 U.S.C. § 1331 Jurisdiction Even if the Court were to lack jurisdiction under 28 U.S.C. § 2241, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 would offer an independent source of jurisdiction. 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Petitioner properly framed her pleading as a civil rights action “[i]n the alternative.” In addition to her request for a writ of habeas corpus, Petitioner requests “injunctive relief
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ordering Defendants to immediately release Janet, with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause.” (ECF No. 1, PageID.17.) She titles her single claim for relief “Violation of Fifth Amendment Right to Substantive and Procedural Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement.” (Id. at PageID.16.)
Should Petitioner’s habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court first upheld the proposition that the Constitution itself provided an implied cause of action for claims against federal officials. 403 U.S. at 388. In 2017, the Supreme Court held that federal courts should not extend a Bivens remedy into new contexts if there exist any “special factors counseling hesitation.” Ziglar v. Abassi, 137 S.Ct. 1843, 1857 (2017). However, there is no corresponding limitation on the Constitution as a cause of action to seek injunctive or other equitable relief. See Ziglar, 137 S. Ct. at 1862 (declining to extend
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Bivens to conditions of confinement claim, but noting that “Respondents . . . challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.”). Instead, there is a “presumed availability of federal equitable relief against threatened invasions of constitutional interests.” Hubbard v. E.P.A., 809 F.2d 1, 11 (D.C. Cir. 1986) (citing Bivens, 403 U.S. at 404 (Harlan, J., concurring)). Indeed, “the power of the federal courts to grant equitable relief for constitutional violations has long been established.” Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995). Here, Petitioner seeks only injunctive and declaratory relief. Accordingly, she may bring her claim directly under the Fifth Amendment, and the Court has jurisdiction to hear the claim under 28 U.S.C. § 1331.
At oral argument, counsel for Respondent raised the question of whether the United States may be entitled to sovereign immunity if Petitioner brought this case under the Fifth Amendment. Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of
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constitutional rights by government officials. In Ex Parte Young, the Supreme Court first articulated the principle that state government officials may be sued for acting unconstitutionally, even if an ensuing injunction would bind the state. 209 U.S. at 123. In Philadelphia Co. v. Stimson, the Supreme Court recognized the applicability of that principle to suits against federal officials. 223 U.S. 605, 620 (1912) (“in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process”). More recently, the Supreme Court affirmed this principle in Dalton v. Specter: “sovereign immunity would not shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his statutory powers.’” 511 U.S. 462, 472 (1994) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949)). In Malone v. Bowdoin, the Court called this principle the “constitutional exception to the doctrine of sovereign immunity.” 369 U.S. 643, 647 (1962). Petitioner here raises a constitutional challenge to her detention as the result of actions taken by Respondent Adducci, a federal officer. Sovereign immunity does not apply.
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Even absent this constitutional exception, the Administrative Procedure Act (APA) provides a statutory waiver to any defense of sovereign immunity. 5 U.S.C. § 702 provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In 2013, the Sixth Circuit recognized that this waiver extends beyond suits brought under the APA:
[W]e now join all of our sister circuits who have done so in holding that § 702's waiver of sovereign immunity extends to all non-monetary claims against federal agencies and their officers sued in their official capacity, regardless of whether plaintiff seeks review of “agency action” or “final agency action” as set forth in § 704.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 673 (6th Cir. 2013); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”). ICE is a federal agency, of which Respondent Adducci is an officer or employee thereof. Petitioner challenges
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Respondent’s actions made in her official capacity. Accordingly, the APA provides a statutory waiver of sovereign immunity.
C. Petitioner’s Status as a Noncitizen Petitioner’s status as a noncitizen who is undergoing removal proceedings does not affect the Court’s jurisdiction to hear this case. Although several statutes limit a district court’s authority to hear cases in the immigration context, none apply here, as set forth below. 28 U.S.C. § 1252(b)(9) provides that judicial review of: all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.
28 U.S.C. § 1252(b)(9). Petitioner does not have a final order of removal. In Jennings v. Rodriguez, the Supreme Court held that 1252(b)(9) did not strip jurisdiction from courts to hear challenges to detention pending removal because detention was not an action taken to remove a noncitizen from the United States. 138 S. Ct. 830, 841 (2018). Petitioner challenges her continued detention; accordingly, 28 U.S.C. § 1252(b)(9) does not strip this Court of jurisdiction.
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8 U.S.C. § 1226(e) bars federal court review of any discretionary decision made by the Attorney General regarding detention, release, bond, or parole in an immigration case. However, in Demore v. Kim, 123 S. Ct. 1708, 1713–14 (2003), the Supreme Court held that § 1226(e) did not prevent noncitizens from raising constitutional challenges to mandatory detention under § 1226(c). Petitioner here raises a Fifth Amendment challenge to her continued mandatory detention under § 1226(c); thus, § 1226(e) does not prevent this Court from exercising jurisdiction.
Finally, 8 U.S.C. § 1252(f), titled “Limit on Injunctive Relief,” provides that:
[N]o court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). But as the Supreme Court recognized in Reno v. Amer.-Arab Anti-Discrim. Comm., “this ban does not extend to individual cases.” 525 U.S. 471, 481–82 (1999). Petitioner seeks individual relief.
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Therefore, 8 U.S.C. § 1252(f) does not affect this Court’s jurisdiction to enter injunctive or declaratory relief.
II. Proper Habeas Respondent Petitioner names as Respondents: Rebecca Adducci, the Detroit District Director of ICE; Matthew Albence, Deputy Director; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Parr, Attorney General of the United States; U.S. Immigration and Customs Enforcement; and Heidi Washington, Director of the Michigan Department of Corrections. Only Respondent Rebecca Adducci is properly named with respect to the petition for a writ of habeas corpus. “Historically, the question of who is ‘the custodian,’ and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and . . . on the convenience of the parties and the court.” Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (citing Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998)). In Roman, the Sixth Circuit held that for habeas petitions in immigration contexts, “the INS District Director for the district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. at 320. The court, in finding that the Attorney General was not a proper respondent
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for a noncitizen’s habeas claim and that a habeas claim could properly have only one respondent, reiterated 28 U.S.C. § 2243’s requirement that a writ of habeas corpus “shall be directed to the person having custody of the person detained.” Id. at 321. Michigan only has one ICE District, located in Detroit. See Enforcement and Removal Operations Field Offices, https://www.ice.gov/contact/ero. Accordingly, Rebecca Adducci, the Detroit District Director, is the proper Respondent for Petitioner’s request for a writ of habeas corpus.
III. Petitioner’s Application for a Temporary Restraining Order
Petitioner, along with her complaint, filed an emergency application for a temporary restraining order. (ECF No. 3.) In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met,
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but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court grants Petitioner’s motion for a temporary restraining order.
A. Irreparable Harm Petitioner is likely to experience irreparable injury absent an injunction, both in the form of loss of health or life, and in the form of an invasion of her constitutional rights. 1. Loss of Health or Life from COVID-19 The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus. On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease
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that can result in serious illness or death. It is caused by a new strain of

coronavirus not previously identified in humans and easily spread from

person to person. There is currently no approved vaccine or antiviral

treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22,

2020).

Since March 4, 2020, the date of Petitioner’s detention at the

Calhoun County Correctional Facility, the exceptionally dangerous

nature of the COVID-19 pandemic has become apparent. On March 10,

2020, the Governor of Michigan announced the state’s first two cases of

COVID-19 and simultaneously declared a State of Emergency. Executive

Order, No. 2020-4 (Mar. 10, 2020). The number of new cases then began

to grow exponentially. As of April 5, 2020, there are now 15,718 confirmed

cases of COVID-19 and 617 known related deaths, with 238 confirmed

cases within the Michigan Department of Corrections system specifically.

See

Coronavirus,

Michigan.gov,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--

,00.html. COVID-19 has a high risk of transmission, and the number and

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rate of confirmed cases indicate broad community spread.3 Executive Order, No. 2020-20 (Mar. 22, 2020). Nationally, ICE detention facilities across our country are experiencing the same thing. As of April 4, 2020, ICE has confirmed at least 13 cases of COVID-19 among immigration detainees and 7 cases among detention facility employees and personnel. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated Apr. 4, 2020 at 8:00pm).
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020),
3 Indeed, since the time of Respondent’s brief, the numbers have continued to grow. Respondent reported that, as of April 3, 2020, Calhoun County alone had 25 cases. (ECF No. 11, PageID.169) By the time the Court held oral argument later that day, that number had grown to 31, with 1 reported death. On April 5, the date of this Order, the number of confirmed cases is now 42, with 1 reported death. Coronavirus, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html.
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https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id.
Though the CDC has recommended public health guidance for detention facilities, and though the Calhoun County Correctional Facility has indeed implemented measures designed to prevent spread of the disease, these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. For example, on April 1, 2020, the Rikers Island jail complex’s chief physician
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acknowledged that “infections are soaring” despite the facility’s

“following Centers for Disease Control and Prevention guidelines and

having moved mountains to protect our patients.” Miranda Bryant,

Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s

Top

Doctor,

The

Guardian

(Apr.

1,

2020),

https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-

coronavirus-public-health-disaster. In the immigration context

specifically, despite Respondents’ argument that the federal government

has effectively incorporated appropriate and effective precautions,

medical experts at the Department of Homeland Security have warned

that detention confinement creates a “tinderbox scenario” where rapid

outbreak is extremely likely, and extremely likely to lead to deadly

results as resources dwindle on an exponential level. Catherine E.

Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in

ICE

Detention,

CNN

(Mar.

20,

2020),

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

coronavirus/index.html.

Petitioner is 56 years old and suffers from the following conditions,

almost all of which place her at an increased risk of a dire outcome from

25

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.511 Page 26 of 45
contracting the COVID-19 virus: multiple sclerosis, bipolar disorder, anemia, essential primary hypertension, hypothyroidism, chronic obstructive pulmonary disease, fibromyalgia, severe major depressive disorder, opioid addition, and polyneuropathy. (ECF No. 1-4, PageID.31.) See Centers for Disease Control, Groups at Higher Risk for Severe Illness, (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (noting that “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled”). Additionally, Respondents have confined Petitioner in an environment where she “shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.” (ECF No. 1, PageID.16.) Petitioner’s involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor. How COVID-19 Spreads, CDC (April 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-
26

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.512 Page 27 of 45
covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.4
These are many of the conditions that the CDC has identified as being particularly likely to increase COVID-19 transmissions in detention facilities. CDC Guidance 3/23/2020. For these reasons, Petitioner’s confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result.
Respondents focus on one particular issue: whether Petitioner is more likely to contract COVID-19 if released than if she remains confined in their jail. Respondents acknowledge that “there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-
4 On April 3, 2020, after Petitioner filed her emergency application for a temporary restraining order, the CDC updated its guidance in light of new evidence of asymptomatic transmission of COVID-19 to recommend that all individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain.” Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html.
27

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.513 Page 28 of 45
19.” (ECF No. 11, PageID.178.) Respondents also acknowledge that Petitioner “does not have to wait until she has COVID-19 to claim that the precautions taken to reduce exposure were insufficient.” (Id. at PageID.179.) Indeed, the crux of Respondents’ argument is not that COVID-19 does not pose a deadly threat to Petitioner if contracted. Rather, Respondents’ argument relies on the proposition that Petitioner does not have a substantial risk for exposure at the Calhoun County Correctional Facility, and her risk of exposure in the community may be greater. (Id. at PageID.178.)
To this end, Respondents posit the following: Petitioner has not established that she has either been exposed to COVID-19, or that her exposure is “imminent,” because there are currently no cases in the facility in which she is detained “and only 25 cases in the surrounding county.”5 (ECF No. 11, PageID.179.) Additionally, Respondents argue that their facility has implemented “numerous precautions to reduce the risk of exposure and spread of COVID-19,”6 and that even if Petitioner is
5 Hours later, due to the exponential nature of COVID-19’s spread, this statistic was already out of date. See supra fn.2.
6 Specifically, Respondents note that the ICE and CCCF precautions are as follows: tracking the disease, screening incoming detainees, isolating and testing
28

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.514 Page 29 of 45
at a “generalized risk” of contracting COVID-19, that does not mean that she is at a “substantial risk” for purposes of her constitutional claim. (Id. at PageID.179-180, citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)).
Respondents’ arguments fail to address the stark reality of this particular global public health crisis. In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a “generalized risk” is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility. In acknowledgment of this simple truth, both the United States Attorney General and the Governor of Michigan have issued independent directives to consider early release for detainees who do not pose a public safety risk, as minimizing crowded populations is the only known way to mitigate spread of this pandemic. Prioritization of
symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing handwashing stations. (ECF No. 11, PageID.172.)
29

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.515 Page 30 of 45
Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att’y Gen. (Mar. 26, 2020); Executive Order, No. 2020-29 (COVID-19) (Mar. 26, 2020). Moreover, Petitioner’s risk of contracting COVID-19 outside of Respondents’ custody has no bearing on whether they have exposed her to the likelihood of irreparable harm. Though the Court commends Respondents for the steps they have taken to prevent spread of the disease, as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances.”). Even the Calhoun County Correctional Facility’s additional measure of screening incoming
30

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.516 Page 31 of 45
shift workers for high temperatures is insufficient to stem the spread of disease, as COVID-19 spreads asymptomatically. How COVID-19 Spreads, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/howcovidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.
Accordingly, the Court concludes that Petitioner’s continued confinement at the Calhoun County Correctional Facility exposes her to a substantial risk of contracting COVID-19, which due to her specific underlying health conditions exposes her to a substantial risk of irreparable harm to her health or life.
2. Violation of Constitutional Rights Petitioner’s Fifth Amendment claim triggers a finding that Petitioner will suffer irreparable harm absent an injunction. Petitioner alleges that in “subjecting Janet to detention conditions that amount to punishment and that fail to ensure her safety and health,” Respondent is “subjecting [her] to a substantial risk of serious harm, in violation of [her] rights under the Due Process Clause.” (ECF No. 1, PageID.17.) The alleged violation of a constitutional right is sufficient for a court to find
31

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.517 Page 32 of 45
irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77; McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) ; see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegation of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm). Below, the Court finds Petitioner is likely to succeed on the merits of this Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).
B. Likelihood of Success on the Merits Petitioner is likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend.
32

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.518 Page 33 of 45
V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). As it pertains to Petitioner, the Due Process Clause prohibits the government from imposing torture or cruel and unusual confinement conditions on non-convicted detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.”). This type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component The objective component is satisfied by showing that, “absent reasonable precautions, an inmate is exposed to a substantial risk of
33

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.519 Page 34 of 45
serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 Fed.Appx. 354, 361 (6th Cir.2013)). Respondents argue that the precautions they have taken at the Calhoun County Correctional Facility combined with the lack of a confirmed outbreak of COVID-19 at the facility show that Petitioner is unable to demonstrate she is at substantial risk of serious harm. (ECF No. 11, PageID.180.) Instead, Respondents argue that Petitioner merely has a “generalized risk” of contracting COVID-19, which is insufficient to prevail on a Fifth Amendment constitutional claim. (Id.) But as noted above, in Petitioner’s case, a generalized risk is a substantial risk.
As the Supreme Court explained in Helling v. McKinney, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” 509 U.S. 25, 33 (1993). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Id. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
34

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.520 Page 35 of 45
condition in their prison on the ground that nothing yet had happened to them.” Id.
Respondents attempt to distinguish this case from Helling on the grounds that the Petitioner in Helling alleged a sufficiently imminent danger from “actual exposure to high levels of cigarette smoke because his former cellmate was a five-pack a day smoker.” (ECF No. 11, PageID.179 (citing Helling, 509 U.S. at 29).) Respondents argue that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is “imminent.”” (Id.) But as the above analysis regarding the risk of irreparable injury to Petitioner demonstrates, the Respondents grievously underestimate the seriousness of the risk to Petitioner, in spite of precautionary measures and despite the lack of confirmed CCCF outbreak to date. The evergrowing number of COVID-19 outbreaks in prisons and detention facilities,7 despite a range of precautionary measures, demonstrates that
7 See, e.g., Ted Rod Roelofs, Coronavirus Cases Surge in Michigan’s Crowded Prisons, Bridge (Mar. 27, 2020), https://www.bridgemi.com/michigangovernment/coronavirus-cases-surge-michigans-crowded-prisons; Oregon Inmate in Salem Tests Positive for COVID-19, the First in the State Prison System, SalemReporter (Apr. 3, 2020), https://www.salemreporter.com/posts/2168/oregoninmate-in-salem-tests-positive-for-covid-19-the-first-in-the-state-prison-system (noting outbreak despite precautionary measures); Ames Alexander and Jessica
35

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.521 Page 36 of 45
the risk of a COVID-19 outbreak in Respondent’s facility is significant. Nor, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, can Respondents reasonably assert, as they do, that there are no COVID-19 cases in CCCF; they can only allege that there are no confirmed cases. By the time a case is confirmed, it will almost certainly be too late to protect Petitioner’s constitutional rights. Petitioner, so long as she remains detained, is therefore exposed to a substantial risk of serious harm.
2. Subjective Component The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective

Banov, In NC Prisons, Five Employees and Four Inmates Have Now Tested Positive

for

COVID-19,

Charlotte

Observer

(Apr.

1,

2020),

https://www.charlotteobserver.com/news/coronavirus/article241675886.html;

Alexandra Kelley, Louisiana Prison Records Third Inmate Death as a Result of the

Coronavirus, The Hill (Apr. 1, 2020), https://thehill.com/changing-america/well-

being/prevention-cures/490839-louisiana-prison-records-third-inmate-death-as-a.

36

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.522 Page 37 of 45
component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Respondents concede the COVID-19 risk to Petitioner: “The government does not dispute that there is a health risk posed by COVID19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Rightfully so: the above analysis pertaining to the risk of irreparable harm reveals that the substantial risk to Petitioner is obvious. Farmer, 511 U.S. at 842.
Respondents instead argue that Calhoun County Correctional Facility’s precautionary measures preclude a finding of deliberate indifference because government officials cannot be said to have disregarded the risk to Petitioner. As noted above, officials at the Calhoun County Correctional Facility have taken a range of precautionary measures to protect against a potential outbreak. (See
37

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.523 Page 38 of 45
ECF No. 11-3.) But as Plaintiff’s pleadings and the above analysis regarding irreparable injury demonstrate, even with these precautionary measures, in light of Petitioner’s underlying health conditions, she is not ensured anything close to “reasonable safety.” Farmer, 511 U.S. at 844. (See ECF No. 6-3, PageID.112 (Declaration of Doctor Golob stating, “[V]ulnerable people, people over the age of 50 and people of any age with lung disease . . . living in an institutional setting . . . are at grave risk of severe illness and death from COVID-19.”); ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon, stating “The only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety.”).) Based on the record before the Court, the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.
For the same reasons, Petitioner’s continued detention cannot “reasonably relate[] to any legitimate government purpose.” Bell v. Wolfish, 441 U.S. 520, 536-39 (1979) (holding that pretrial detention not
38

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.524 Page 39 of 45
reasonably related to a legitimate government purpose must be considered punishment and therefore contrary to the Fifth Amendment). In their response, Respondents do not directly address the justification for Petitioner’s continued detention. The Court notes that Petitioner is in civil detention pending removal proceedings pursuant to 28 U.S.C. § 1226(c). Petitioner faces significant risk of death due to COVID-19; accordingly, her continued confinement at the Calhoun County Correctional Facility is both unrelated and contrary to the government purpose of carrying out her removal proceedings.
Both the objective and subjective components are met; Petitioner has shown a likelihood of success on the merits. The Court reiterates that at this early stage in the litigation, Petitioner need not show a certainty of success on the merits. Indeed, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199, 467 F.3d at 1009 (6th Cir. 2006). Given the risk and severity of irreparable harm to Petitioner and the weight of public health evidence indicating release
39

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.525 Page 40 of 45
as the only reasonable option under these facts, Petitioner has met her current burden with respect to the merits of her claim.
Respondents nonetheless cite to some authority that release is an inappropriate remedy for Petitioner’s claim. See Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (noting release is not among the proper remedies for Eighth Amendment deliberate indifference claims, which are limited to injunctive relief for proper treatment and damages); Heximer v. Woods, No. 08-14170, 2018 WL 1193368, at *2 (E.D. Mich. Mar. 8, 2018) (noting that “release from custody is not an available remedy for a deliberate indifference claim.”). As explained above, Petitioner has shown a likelihood of success on the merits of her claim that given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect her Fifth Amendment rights. Release from custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it. See Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”)
40

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.526 Page 41 of 45
3. Qualified Immunity In its supplemental brief, Respondents note that to the extent Petitioner brings a civil rights case, Respondents are entitled to assert a defense of qualified immunity. (ECF No. 19, PageID.317.) Qualified immunity is unavailable as a defense in cases seeking injunctive relief. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (noting that qualified immunity defense is not available in “suits against individuals where injunctive relief is sought in addition to or instead of damages”); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (describing qualified immunity as “immunity from suits for damages”). Because Petitioner here seeks only declaratory and injunctive relief, qualified immunity does not apply. C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Respondents do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
41

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.527 Page 42 of 45
The public interest favors Petitioner’s release because of the risk that Petitioner’s constitutional rights will be deprived absent an injunction. “[I]t is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994).
Additionally, Petitioner’s release will protect public health. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, at *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Protecting public health and safety is in the public interest. See Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Respondents argue that public interest favors Petitioner’s continued detention because “the public interest in enforcement of the
42

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.528 Page 43 of 45
United States’ immigration laws is significant.” (ECF No. 11, PageID.187 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”)).
Respondents point to only one immigration law that will see continued enforcement by denying relief to Petitioner. That law is 8 U.S.C. § 1226(c), and it authorizes Petitioner’s continued detention. But as set forth above, Petitioner’s continued detention is in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give way.
The enforcement of the remainder of U.S. immigration laws against Petitioner will continue unabated should the Court grant Petitioner relief. A hearing on Petitioner’s request for cancellation of removal is scheduled for April 14, 2020. (ECF No. 11, PageID.170). Respondents do not argue that Petitioner’s release will jeopardize her appearance at that hearing, nor do they argue that Petitioner’s release will undermine her removal from this country, should Petitioner’s defense fail and should conditions allow such removal.
43

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.529 Page 44 of 45
The public interest and balance of equities demand that the Court protect Petitioner’s constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional. The remaining factors counsel granting Petitioner relief.
Because all four factors weigh in favor of issuing emergency injunctive relief, Petitioners motion for a temporary restraining order is granted.
IV. Conclusion For the reasons stated above, Petitioner’s Application for a Temporary Restraining Order is GRANTED IN PART. Respondent Adducci is ORDERED to release Petitioner on April 6, 2020 on her own recognizance. Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings. Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in
44

Case 2:20-cv-10829-JEL-APP ECF No. 22 filed 04/05/20 PageID.530 Page 45 of 45

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Temporary Restraining Order will expire on April 17, 2020, at

6:30 p.m. No later than April 10, 2020, at 12:00 p.m., Respondents must

show cause why this Order should not be converted to a preliminary

injunction. Petitioner may file a response no later than April 16, 2020, at

12:00 p.m.

IT IS SO ORDERED.

Dated: April 5, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 5, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

45

 
 U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:20-cv-10829-JEL-APP

Malam v Rebecca Adducci et al

Date Filed: 03/30/2020

Assigned to: District Judge Judith E. Levy

Jury Demand: None

Referred to: Magistrate Judge Anthony P. Patti

Nature of Suit: 460 Deportation

Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Jurisdiction: U.S. Government

Det

Defendant

Petitioner Janet Malam

represented by Rosana Santana Moura Garbacik Stacer, PLC 472 Starkweather St Plymouth, MI 48170 734-453-7878 Fax: 734-468-1515 Email: rgarbacik@stacerplc.com TERMINATED: 10/22/2020 ATTORNEY TO BE NOTICED

Andrew D. Stacer Stacer, PLC 472 Starkweather St Plymouth, MI 48170 734-453-7878 Fax: 734-468-1515 Email: AStacer@StacerPLC.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Ruby Briselda Escobar

represented by Breanne Palmer Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street NW Washington D.C, DC 20006 202-223-7300 Email: bpalmer@paulweiss.com TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Daniel S. Korobkin American Civil Liberties Union Fund

of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED
Darren Gardner 2001 K Street NW Washington DC, DC 20006 202-223-7301 Email: dgardner@paulweiss.com ATTORNEY TO BE NOTICED
David C Fathi American Civil Liberties Union National Prison Project 915 15th St. NW Ste 7th Floor Washington, DC 20005 202-548-6603 Email: dfathi@aclu.org ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho American Civil Liberties Union Foundation National Prison Project 915 15th St. NW Ste 7th Floor Washington, DC 20005 202-548-6616 Email: echo@aclu.org ATTORNEY TO BE NOTICED
Jeannie S. Rhee Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street NW Washington, DC 20006 202-223-7300 Email: jrhee@paulweiss.com ATTORNEY TO BE NOTICED
Jonathan Silberstein-Loeb

Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: jsilbersteinloeb@paulweiss.com ATTORNEY TO BE NOTICED
Joseph Granzotto Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, DC 20006 202-223-7300 Email: jgranzotto@paulweiss.com ATTORNEY TO BE NOTICED
Katharine Warren Gadsden Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3489 Email: kgadsden@paulweiss.com ATTORNEY TO BE NOTICED
Mark Mendelsohn Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, DC 20006-1047 202-223-7300 Email: mmendelsohn@paulweiss.com ATTORNEY TO BE NOTICED
Miriam J. Aukerman American Civil Liberties Union of Michigan West Michigan Regional Office 1514 Wealth St., SE Grand Rapids, MI 49506 616-301-0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED

Monica Cesilia Andrade ACLU of Michigan 2966 Woodward Ave Detroit, MI 48201 313-578-6807 Fax: 313-578-6807 Email: mandrade@aclumich.org ATTORNEY TO BE NOTICED
My Khanh Ngo American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 718-483-5885 Email: mngo@aclu.org ATTORNEY TO BE NOTICED
Oleg Shik Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: oshik@paulweiss.com ATTORNEY TO BE NOTICED
Rachel Fiorill Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, DC 20006 202-223-7300 Email: rfiorill@paulweiss.com ATTORNEY TO BE NOTICED
Stanton Lawyer Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, DC 20006 202-223-7300 Email: slawyer@paulweiss.com

Intervenor Plaintiff Amer Toma

TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Jonathan Silberstein-Loeb (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Miriam J. Aukerman

Intervenor Plaintiff Tomas Cardona Ramirez

(See above for address) ATTORNEY TO BE NOTICED
Monica Cesilia Andrade (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Isaac Orta Vieyra

Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Guo Yan Lin Castro

Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Rudy Sosa Carillo

Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address)

Intervenor Plaintiff Sergio Brito

ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi

Intervenor Plaintiff Jose Mauricio Garcia Toledo

(See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED

Intervenor Plaintiff

Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED

Emanuel Rosales Borboa

represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED

Intervenor Plaintiff Damary Rodriguez Salabarria

Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Qaid Alhalmi

Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Min Dan Zhang

Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address)

Intervenor Plaintiff Julio Fernando Medina Euceda
Intervenor Plaintiff

ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED

Baldemar Barajas Santoyo Intervenor Plaintiff

represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED

Jose Gomez Santiz

represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED

Intervenor Plaintiff Yohandry Ley Santana

Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Sergio Perez Pavon

Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Johanna Whernman

Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address)

Intervenor Plaintiff Lenche Krcoska

ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn

Intervenor Plaintiff Waad Barash

(See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Leonard Baroi

Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff William Whernman

Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Zaid Shaher Mohammad al-Araj

Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Ahammad Ali

Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address)

Intervenor Plaintiff Ziggy Marcus Garvie

ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Mark Mendelsohn

Intervenor Plaintiff Juan Guerrero Bernardez

(See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Gan Jin

Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Tauqir Niazi

Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Breanne Palmer (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Darren Gardner (See above for address) ATTORNEY TO BE NOTICED
David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Joseph Granzotto (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address)

Intervenor Plaintiff Pedro Quijada

ATTORNEY TO BE NOTICED
Mark Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address) TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by David C Fathi (See above for address) ATTORNEY TO BE NOTICED
Eunice Hyunhye Cho (See above for address) ATTORNEY TO BE NOTICED
Jeannie S. Rhee (See above for address) ATTORNEY TO BE NOTICED
Katharine Warren Gadsden (See above for address) ATTORNEY TO BE NOTICED
Oleg Shik (See above for address) ATTORNEY TO BE NOTICED
Rachel Fiorill (See above for address) ATTORNEY TO BE NOTICED
Stanton Lawyer (See above for address)

V. Respondent Detroit Field Office Rebecca Adducci
Respondent Dep Dir ICE MATTHEW T. ALBENCE

TERMINATED: 09/09/2020 ATTORNEY TO BE NOTICED
represented by Kevin Hirst DOJ-Civ Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-353-8536 Email: kevin.c.hirst@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Darling U.S Department of Justice 211 W. Fort Street Suite 2001 Detroit, MI 48226 313-226-9137 Email: bradley.darling@usdoj.gov ATTORNEY TO BE NOTICED
Jennifer L. Newby U.S. Attorney Defensive Litigation 211 W. Fort Suite 2001 Detroit, MI 48226 313-226-0295 Fax: 313-226-2311 Email: Jennifer.Newby@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kevin Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Darling (See above for address) ATTORNEY TO BE NOTICED

Respondent Sec. DHS Chad F. Wolf
Respondent US AG WILLIAM P BARR
Respondent MDOC Director HEIDI E. WASHINGTON Respondent ICE/DHS ICE/DHS

Jennifer L. Newby (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Darling (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Newby (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Darling (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Newby (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Darling (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Newby

Amicus Rights Behind Bars

(See above for address) ATTORNEY TO BE NOTICED
represented by Sheila C. Cummings Cummings & Cummings Law Group, PLLC 423 N. Main St. Suite 200 Royal Oak, MI 48067 248-733-3405 Email: sheila@cummingslawpllc.com

Date Filed 03/30/2 020
03/30/2 020 03/31/2 020
03/31/2 020 03/31/2 020
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# Docket Text
1 Emergency PETITION for Writ of Habeas Corpus filed by Janet Malam against All Defendants, Receipt No: AMIEDC-7710920 - Fee: $ 5. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Plaintiff LPR Card, # 3 Exhibit Plaintiff SSD application approval and earnings, # 4 Exhibit Plaintiff Medical Records, # 5 Exhibit Order of Mandatory Detention, # 6 Exhibit Order for Release 9th Cir Ct) (Stacer, Andrew) (Entered: 03/30/2020)
2 Emergency MOTION for Temporary Restraining Order by Janet Malam. (Stacer, Andrew) (Entered: 03/30/2020)
3 NOTICE of Appearance by Jennifer L. Newby on behalf of MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Newby, Jennifer) (Entered: 03/31/2020)
4 NOTICE of Appearance by Rosana Santana Moura Garbacik on behalf of Janet Malam. (Garbacik, Rosana) (Entered: 03/31/2020)
5 NOTICE OF HEARING BY TELEPHONE re 2 Emergency MOTION for Temporary Restraining Order . Motion Hearing set for 3/31/2020 04:00 PM before District Judge Judith E. Levy***PLEASE USE THE FOLLOWING CALL-IN INFORMATION: (888) 363-4734; Access code: 2541474*** (WBar) (Entered: 03/31/2020)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DAll) (Entered: 03/31/2020)
6 SUPPLEMENTAL BRIEF re 2 Emergency MOTION for Temporary Restraining Order filed by Janet Malam. (Attachments: # 1 Index of Exhibits

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Index, # 2 Exhibit Dr. Amon, # 3 Exhibit Dr. Golob) (Stacer, Andrew) (Entered: 03/31/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Telephonic Hearing held on 3/31/2020 re 2 Emergency MOTION for Temporary Restraining Order. Follow-up Telephonic Hearing set for 4/3/2020 04:00 PM before District Judge Judith E. Levy; Response due by noon on 4/3/2020. (Court Reporter: Christin Russell) (WBar) (Entered: 04/01/2020)
7 NOTICE OF HEARING BY TELEPHONE on 2 Emergency MOTION for Temporary Restraining Order . Follow-up Motion Hearing set for 4/3/2020 04:00 PM before District Judge Judith E. Levy; Response due by noon on 4/3/2020 (WBar) (Entered: 04/01/2020)
8 MOTION to Intervene and Brief in Support by Ruby Briselda Escobar, Amer Toma. (Rhee, Jeannie) (Entered: 04/02/2020)
9 MOTION to Expedite Consideration by Ruby Briselda Escobar, Amer Toma. (Rhee, Jeannie) (Entered: 04/02/2020)
10 ORDER Granting 9 MOTION to Expedite Consideration. TELEPHONE Motion Hearing re 8 MOTION to Intervene set for 4/3/2020 04:45 PM before District Judge Judith E. Levy, Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/03/2020)
11 RESPONSE to 2 Emergency MOTION for Temporary Restraining Order filed by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Attachments: # 1 Exhibit A - Salavtera Declaration, # 2 Exhibit B - CDC Guidelines, # 3 Exhibit C - Jacobs Declaration, # 4 Exhibit D - CDC Testing) (Newby, Jennifer) (Entered: 04/03/2020)
12 NOTICE of Appearance by Miriam J. Aukerman on behalf of Ruby Briselda Escobar, Amer Toma. (Aukerman, Miriam) (Entered: 04/03/2020)
13 NOTICE of Appearance by Daniel S. Korobkin on behalf of Ruby Briselda Escobar, Amer Toma. (Korobkin, Daniel) (Entered: 04/03/2020)
14 NOTICE of Appearance by Monica Cesilia Andrade on behalf of Ruby Briselda Escobar, Amer Toma. (Andrade, Monica) (Entered: 04/03/2020)
15 RESPONSE to 8 MOTION to Intervene and Brief in Support filed by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Newby, Jennifer) (Entered: 04/03/2020)
16 DECLARATION by Pay Par Gai re 8 MOTION to Intervene and Brief in Support (Supplemental Declaration in Support) filed by Ruby Briselda Escobar, Amer Toma (Rhee, Jeannie) (Entered: 04/03/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Telephonic Motion Hearing held on 4/3/2020 re 2 Emergency MOTION for Temporary Restraining Order filed by Janet Malam. Disposition: Motion taken under advisement (Court Reporter: Christin Russell) (WBar) (Entered: 04/05/2020)

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Minute Entry for proceedings before District Judge Judith E. Levy: Telephonic Motion Hearing held on 4/3/2020 re 8 MOTION to Intervene. Disposition: Motion granted (Court Reporter: Christin Russell) (WBar) (Entered: 04/05/2020)
17 Emergency PETITION for Writ of Habeas Corpus and Complaint for Injunctive Relief filed by Amer Toma, Ruby Briselda Escobar against MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, HEIDI E. WASHINGTON, Chad F. Wolf, Receipt No: AMIEDC-7722508 - Fee: $ 5. (Rhee, Jeannie) (Entered: 04/05/2020)
18 SUPPLEMENTAL BRIEF re 6 Supplemental Brief, 2 Emergency MOTION for Temporary Restraining Order filed by Janet Malam. (Attachments: # 1 Exhibit Declaration of Counsel) (Stacer, Andrew) (Entered: 04/05/2020)
19 SUPPLEMENTAL BRIEF re 2 Emergency MOTION for Temporary Restraining Order filed by Rebecca Adducci. (Newby, Jennifer) (Entered: 04/05/2020)
20 Emergency MOTION for Temporary Restraining Order by Ruby Briselda Escobar, Amer Toma. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Declaration of Dr. Jonathan Louis Golob, # 3 Exhibit 2: Declaration of Dr. Robert B. Greifinger, M.D., # 4 Exhibit 3: Declaration of My Khanh Ngo, Esq., Attorney for Intervenor-Plaintiffs, # 5 Exhibit 4: Declaration of Ronald Kaplovitz, Esq., Attorney for Amer Toma, # 6 Exhibit 5: Declaration of Farrah Hobballah, Esq., Attorney for Ruby Briselda Escobar, # 7 Exhibit 6: Declaration of Pay Par Gai) (Rhee, Jeannie) (Entered: 04/05/2020)
21 ORDER granting 8 Motion to Intervene. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/05/2020)
22 OPINION AND ORDER granting in part 2 Motion for Temporary Restraining Order. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/05/2020)
23 AMENDED OPINION and ORDER Granting in Part 2 Emergency MOTION for Temporary Restraining Order, Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/06/2020)
24 ORDER for Responses to 20 Motion for TRO; Response due no later than 2:00 p.m. on 4/7/2020 Reply due no later than 10:00 a.m. on 4/8/2020 Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/06/2020)
25 RESPONSE to 20 Emergency MOTION for Temporary Restraining Order filed by Rebecca Adducci. (Newby, Jennifer) (Entered: 04/07/2020)
26 AMENDED 25 Response to Motion by Rebecca Adducci (Attachments: # 1 Exhibit Whalen Declaration, # 2 Exhibit Obaid Declaration) (Newby, Jennifer) (Entered: 04/07/2020)

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27 REPLY to Response re 20 Emergency MOTION for Temporary Restraining Order filed by Ruby Briselda Escobar, Amer Toma. (Rhee, Jeannie) (Entered: 04/08/2020)
28 MOTION for Leave to File Excess Pages by Ruby Briselda Escobar, Amer Toma. (Rhee, Jeannie) (Entered: 04/08/2020)
TEXT-ONLY ORDER Granting 28 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/08/2020)
29 OPINION AND ORDER granting in part 20 Motion for Temporary Restraining Order. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/09/2020)
30 RESPONSE TO ORDER TO SHOW CAUSE by Rebecca Adducci. (Attachments: # 1 Exhibit Jacobs Supp Declaration) (Newby, Jennifer) (Entered: 04/10/2020)
31 RESPONSE TO ORDER TO SHOW CAUSE re Toma by Rebecca Adducci. (Attachments: # 1 Exhibit Jacobs Supp Declaration, # 2 Exhibit 2-28-20 Sick Call, # 3 Exhibit 4-3-20 Sick Call) (Newby, Jennifer) (Entered: 04/14/2020)
32 REPLY to Response re 2 Emergency MOTION for Temporary Restraining Order filed by Janet Malam. (Stacer, Andrew) (Entered: 04/16/2020)
33 OPINION and ORDER Converting 23 Temporary Restraining Order, into Preliminary Injunction, Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/17/2020)
34 MOTION TO EXTEND Temporary Restraining Order and Deadline to File Reply to Response to Order to Show Cause , MOTION to Expedite Discovery by Amer Toma. (Attachments: # 1 Exhibit A - Expedited Interrogatories, # 2 Exhibit B - Expedited Requests for Production of Documents) (Rhee, Jeannie) (Entered: 04/18/2020)
35 RESPONSE to 34 MOTION TO EXTEND Temporary Restraining Order and Deadline to File Reply to Response to Order to Show Cause MOTION to Expedite Discovery filed by Rebecca Adducci. (Newby, Jennifer) (Entered: 04/18/2020)
36 OPINION AND ORDER granting in part and denying in part 34 Motion for extension of TRO, expedited discovery, and extension of deadline to reply to response to order to show cause. Signed by District Judge Judith E. Levy. (WBar) Modified on 4/19/2020 (WBar). (Entered: 04/19/2020)
37 RESPONSE TO ORDER TO SHOW CAUSE re: Toma by Amer Toma. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Declaration of Ruby Briselda Escobar, # 3 Exhibit 2 - Declaration of My Khanh Ngo, # 4 Exhibit 3 Declaration of Dora Schriro, # 5 Exhibit 4 - Declaration of Amer Toma) (Rhee, Jeannie) (Entered: 04/21/2020)
38 MOTION for Leave to File Additional Evidence by Amer Toma. (Rhee, Jeannie) (Entered: 04/21/2020)

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TEXT-ONLY ORDER Granting 38 MOTION for Leave to File Additional Evidence filed by Amer Toma. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/21/2020)
39 ORDER Extending Temporary Restraining Order 29 . Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/21/2020)
40 NOTICE of Appearance by My Khanh Ngo on behalf of Amer Toma. (Ngo, My Khanh) (Entered: 04/21/2020)
41 OPINION and ORDER Converting 29 Temporary Restraining Order, into Preliminary Injunction. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/22/2020)
42 NOTICE of Appearance by Jonathan Silberstein-Loeb on behalf of Ruby Briselda Escobar, Amer Toma. (Silberstein-Loeb, Jonathan) (Entered: 04/22/2020)
43 Amended PETITION for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Class Action) filed by Amer Toma, Ruby Briselda Escobar, Tomas Cardona Ramirez, Isaac Orta Vieyra, Guo Yan Lin Castro, Rudy Sosa Carillo, Sergio Brito, Jose Mauricio Garcia Toledo, Emanuel Rosales Borboa, Damary Rodriguez Salabarria, Qaid Alhalmi, Min Dan Zhang, Julio Fernando Medina Euceda, Baldemar Barajas Santoyo, Jose Gomez Santiz against MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf, Receipt No: AMIEDC-7763371 - Fee: $ 5. (Rhee, Jeannie) (Entered: 04/26/2020)
44 Emergency MOTION for Temporary Restraining Order by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Declaration of Jonathan Louis Golob, # 3 Exhibit 2 Declaration of Robert B. Greifinger, # 4 Exhibit 3 - Declaration of Homer Venters, # 5 Exhibit 4 - Declaration of Dora Schriro, # 6 Exhibit 5 - Declaration of My Khanh Ngo, # 7 Exhibit 6 - Declaration of Heather Garvock, # 8 Exhibit 7 - Declaration of Richard Kessler, # 9 Exhibit 8 - Declaration of Jonathan Contreras, # 10 Exhibit 9 - Declaration of Joseph Hughes, # 11 Exhibit 10 Declaration of Caterina Amaro-Luedtke, # 12 Exhibit 11 - Declaration of Kai De Graaf, # 13 Exhibit 12 - Declaration of Reynaldo Albino-Martinez) (Rhee, Jeannie) (Entered: 04/26/2020)
45 MOTION to Expedite Discovery, Status Reports, and Client Access by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Proposed Interrogatories, # 3 Exhibit B: Proposed Requests for Production, # 4 Exhibit C: Proposed Deposition Notice, # 5 Exhibit D: Declaration of Darren Gardner, # 6 Exhibit E: ICE Guidance on COVID-19, April 14, 2020,

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# 7 Exhibit F: ICE Guidance on COVID-19, April 24, 2020, # 8 Exhibit G: Chief Judge John J. McConnell Jr., General Order Directing the Warden of the Donald W. Wyatt Detention Facility to File Status Reports (Apr. 16, 2020), Minutes (In Chambers), # 9 Exhibit H: Fraihat, et al v. U.S. Immigration and Customs Enforcement, et al., EDCV 19-1546 JGB (SHKx), ECF No. 132 at 3839 (C.D. Cal. Apr. 20, 2020), # 10 Exhibit I: Gayle v. Meade, No. 20-21553COOKE/GOODMAN, 2020 WL 1949737 (S.D. Fla. Apr. 22, 2020), # 11 Exhibit J: Jones v. Wolf, No. 1:20-cv-00361-LJV, ECF No. 44 (W.D.N.Y. Apr. 2, 2020)., # 12 Exhibit K: Order Regarding Petitioners/Plaintiffs Emergency Motion Regarding Coercion and Interference with Class Members (ECF 307), Hamama v. Adducci, No. 2:17-cv-11910, ECF No. 316 (E.D. Mich. June 20, 2018)) (Rhee, Jeannie) (Entered: 04/27/2020)
46 ORDER Requiring Response to 45 Motion to Expedite; Response due by 4:00 p.m. on 4/28/2020, Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/27/2020)
47 EXHIBIT 3 - Corrected Declaration of Homer Venters re 44 Emergency MOTION for Temporary Restraining Order by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang (Rhee, Jeannie) (Entered: 04/27/2020)
48 ORDER Requiring Response to 44 Motion for TRO, Response due by 4:00 p.m. on 4/29/2020 Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/28/2020)
49 RESPONSE to 45 MOTION to Expedite Discovery, Status Reports, and Client Access filed by Rebecca Adducci. (Attachments: # 1 Exhibit Fraihat v. ICE Class Certification, # 2 Exhibit Telephone Policy) (Newby, Jennifer) (Entered: 04/28/2020)
50 REPLY to Response re 45 MOTION to Expedite Discovery, Status Reports, and Client Access filed by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang. (Rhee, Jeannie) (Entered: 04/29/2020)
51 Ex Parte MOTION for Leave to File Excess Pages by Rebecca Adducci. (Newby, Jennifer) (Entered: 04/29/2020)
52 RESPONSE to 44 Emergency MOTION for Temporary Restraining Order filed by Rebecca Adducci. (Attachments: # 1 Exhibit Obaid Declaration, # 2 Exhibit Kanakry Declaration, # 3 Exhibit Saunders Declaration, # 4 Exhibit Mitchell Declaration, # 5 Exhibit Quinn Declaration, # 6 Exhibit McClain Declaration, # 7 Exhibit ERO PRR, # 8 Exhibit Jacobs Declaration, # 9 Exhibit Calhoun Guidance, # 10 Exhibit CDC High-Risk, # 11 Exhibit CDC Guidance) (Newby, Jennifer) (Entered: 04/29/2020)

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TEXT-ONLY ORDER Granting 51 Ex Parte MOTION for Leave to File Excess Pages filed by Rebecca Adducci. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/29/2020)
53 ORDER granting in part and denying in part 45 Motion for Expedited Discovery. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/30/2020)
54 NOTICE of Appearance by Bradley Darling on behalf of MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 05/01/2020)
55 NOTICE OF ZOOM VIDEO HEARING on 44 Emergency MOTION for Temporary Restraining Order . Motion Hearing set for 5/7/2020 02:00 PM before District Judge Judith E. Levy (WBar) (Entered: 05/01/2020)
56 ORDER REGARDING PUBLIC ACCESS; Objections due by 12:00 p.m. EST on 5/6/2020, Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/04/2020)
57 REPLY to Response re 44 Emergency MOTION for Temporary Restraining Order filed by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1-Supplemental declaration of Dr. Homer Venters, # 3 Exhibit 2-Declaration of My Khanh Ngo) (Rhee, Jeannie) (Entered: 05/05/2020)
58 MOTION for Leave to File Excess Pages by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/05/2020)
59 MOTION for Leave to File Additional Evidence by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/05/2020)
TEXT-ONLY ORDER Granting 58 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/05/2020)
TEXT-ONLY ORDER Granting 59 MOTION for Leave to File Additional Evidence. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/05/2020)
60 SUPPLEMENTAL BRIEF re 56 Order, Set Deadlines/Hearings -- Defendants Response to Order Regarding Public Access filed by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 05/06/2020)
61 STATEMENT of Plaintiffs Regarding Public Access to Docket by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

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Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang (Rhee, Jeannie) (Entered: 05/06/2020)
62 SECOND ORDER Regarding Public Access. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/06/2020)
63 Ex Parte MOTION for Leave to File Sur-Reply (Unopposed) by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 05/06/2020)
64 SUR-REPLY re 44 Emergency MOTION for Temporary Restraining Order filed by Rebecca Adducci. (Newby, Jennifer) (Entered: 05/06/2020)
TEXT-ONLY ORDER Granting 63 Ex Parte MOTION for Leave to File SurReply. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/07/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Zoom Webinar Motion Hearing held on 5/7/2020 re 44 Emergency MOTION for Temporary Restraining Order filed by Min Dan Zhang, Julio Fernando Medina Euceda, Tomas Cardona Ramirez, Qaid Alhalmi, Emanuel Rosales Borboa, Damary Rodriguez Salabarria; Disposition: Motion taken under advisement (Court Reporter: Jeseca Eddington) (WBar) (Entered: 05/07/2020)
65 STIPULATED PROTECTIVE ORDER, Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/09/2020)
66 NOTICE by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang re 44 Emergency MOTION for Temporary Restraining Order / Plaintiffs' Notice of Supplemental Authority (Attachments: # 1 Exhibit A - Opinion and Order) (Rhee, Jeannie) (Entered: 05/11/2020)
67 TRANSCRIPT of Motion Hearing held on 5/7/2020. (Court Reporter/Transcriber: Jeseca C. Eddington) (Number of Pages: 57) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript Restriction set for 8/10/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Eddington, J) (Entered: 05/12/2020)
68 OPINION AND ORDER granting in part 44 Motion for Temporary Restraining Order as a Preliminary Injunction. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/12/2020)
69 NOTICE by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

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Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang re: Plaintiffs' List of Docket Entries that Contain Sensitive Information (Rhee, Jeannie) (Entered: 05/13/2020)
70 NOTICE by Rebecca Adducci re 62 Order re Sensitive Information (Newby, Jennifer) (Entered: 05/13/2020)
71 ORDER to Unseal Cases. Signed by District Judge Judith E. Levy. (SSch) (Entered: 05/14/2020)
72 REDACTED VERSION of 17 Petition for Writ of Habeas Corpus, by Ruby Briselda Escobar, Amer Toma (Rhee, Jeannie) (Entered: 05/15/2020)
73 REDACTED VERSION of 20 Emergency MOTION for Temporary Restraining Order (Redacted Exhibits 4 & 5) by Ruby Briselda Escobar, Amer Toma (Attachments: # 1 Exhibit 5) (Rhee, Jeannie) (Entered: 05/15/2020)
74 REDACTED VERSION of 27 Reply to Response to Motion by Amer Toma (Rhee, Jeannie) (Entered: 05/15/2020)
75 REDACTED VERSION of 37 Response to Order to Show Cause, (Redacted Reply Brief, Exhibits 1 & 4) by Amer Toma (Attachments: # 1 Exhibit 1, # 2 Exhibit 4) (Rhee, Jeannie) (Entered: 05/15/2020)
76 REDACTED VERSION of 43 Petition for Writ of Habeas Corpus,, by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang (Rhee, Jeannie) (Entered: 05/15/2020)
77 REDACTED VERSION of 44 Emergency MOTION for Temporary Restraining Order (Redacted Exhibits 3, 6, 7, 9, 10, 11, and 12) by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12) (Rhee, Jeannie) (Entered: 05/15/2020)
78 REDACTED VERSION of 47 Exhibit, Declaration of Homer Venters by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang (Rhee, Jeannie) (Entered: 05/15/2020)
79 REDACTED VERSION of 57 Reply to Response to Motion, (Redacted Exhibit 1) by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang (Rhee, Jeannie) (Entered: 05/15/2020)
80 SUPPLEMENTAL BRIEF re 44 Emergency MOTION for Temporary Restraining Order filed by Rebecca Adducci. (Attachments: # 1 Exhibit

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Hypertension Article, # 2 Exhibit Scissors Declaration, # 3 Exhibit Asthma Guidelines) (Newby, Jennifer) (Entered: 05/18/2020)
81 MOTION Leave to File Brief Amicus Curiae by Rights Behind Bars. (Cummings, Sheila) (Entered: 05/18/2020)
82 SUPPLEMENTAL BRIEF re 44 Emergency MOTION for Temporary Restraining Order filed by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1Declaration of Emanuel Rosales Borboa (Redacted), # 3 Exhibit 2-Declaration of Jennipher L.M. Colthirst, Esq., # 4 Exhibit 3-Declaration of Aaron E. Haier, # 5 Exhibit 4-Declaration of Dr. Whitney Lieb (Redacted), # 6 Exhibit 5Declaration of My Khanh Ngo, Esq., # 7 Exhibit 6-Declaration of Dr. Katherine Peeler (Redacted), # 8 Exhibit 7-Declaration of Dr. Homer Venters) (Rhee, Jeannie) (Entered: 05/18/2020)
83 SEALED EXHIBIT 1-Declaration of Emanuel Rosales Borboa re 82 Supplemental Brief,, by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/18/2020)
84 SEALED EXHIBIT 4-Declaration of Dr. Whitney Lieb re 82 Supplemental Brief,, by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/18/2020)
85 SEALED EXHIBIT 5-Declaration of My Khanh Ngo, Esq. re 82 Supplemental Brief,, by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/18/2020)
86 SEALED EXHIBIT 6-Declaration of Dr. Katherine Peeler re 82 Supplemental Brief,, by Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Min Dan Zhang. (Rhee, Jeannie) (Entered: 05/18/2020)
TEXT-ONLY ORDER Granting 81 MOTION Leave to File Brief Amicus Curiae filed by Rights Behind Bars. Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/19/2020)
87 REDACTED VERSION of 1 Petition for Writ of Habeas Corpus, by Janet Malam (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Stacer, Andrew) (Entered: 05/19/2020)
88 REDACTED VERSION of 2 Emergency MOTION for Temporary Restraining Order by Janet Malam (Stacer, Andrew) (Entered: 05/19/2020)
89 ORDER sealing docket entries. Signed by District Judge Judith E. Levy. (DPer) (Main Document 89 replaced on 5/20/2020) (DPer). (Entered: 05/20/2020)

05/23/2 020
06/02/2 020
06/02/2 020
06/03/2 020
06/04/2 020 06/04/2 020 06/05/2 020 06/05/2 020 06/05/2 020

90 SECOND OPINION and ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AS A PRELIMINARY INJUNCTION 44 , Signed by District Judge Judith E. Levy. (WBar) (Entered: 05/23/2020)
91 Emergency MOTION to Amend/Correct 43 Petition for Writ of Habeas Corpus,, by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Proposed Second Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, # 3 Exhibit B - Proposed Motion for Temporary Restraining Order with Supporting Declarations (Redacted)) (Rhee, Jeannie) (Entered: 06/02/2020)
92 SEALED EXHIBIT Exhibit B - Proposed Motion for Temporary Restraining Order with Supporting Declarations re 91 Emergency MOTION to Amend/Correct 43 Petition for Writ of Habeas Corpus,, by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang. (Rhee, Jeannie) (Entered: 06/02/2020)
93 MOTION to Expedite Consideration by Qaid Alhalmi, Baldemar Barajas Santoyo, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Min Dan Zhang. (Rhee, Jeannie) (Entered: 06/03/2020)
94 RESPONSE to 91 Emergency MOTION to Amend/Correct 43 Petition for Writ of Habeas Corpus,, filed by Rebecca Adducci. (Attachments: # 1 Exhibit Email re Medical Waiver) (Newby, Jennifer) (Entered: 06/04/2020)
95 NOTICE TO APPEAR BY ZOOM WEBINAR: Zoom Status Conference set for 6/5/2020 11:00 AM before District Judge Judith E. Levy (WBar) (Entered: 06/04/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Zoom Webinar Status Conference held on 6/5/2020 (Court Reporter: Darlene May) (WBar) (Entered: 06/05/2020)
96 ORDER granting 91 Motion for leave to Amend; denying as moot 93 Motion to Expedite; and Establishing Case Management Plan (See order for deadlines). Signed by District Judge Judith E. Levy. (WBar) (Entered: 06/05/2020)
97 Second PETITION for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief filed by Sergio Brito, Min Dan Zhang, Guo Yan Lin

Castro, Emanuel Rosales Borboa, Tomas Cardona Ramirez, Jose Gomez Santiz, Julio Fernando Medina Euceda, Rudy Sosa Carillo, Baldemar Barajas Santoyo, Damary Rodriguez Salabarria, Jose Mauricio Garcia Toledo, Qaid Alhalmi, Isaac Orta Vieyra, Amer Toma, Ruby Briselda Escobar, Yohandry Ley Santana, Sergio Perez Pavon, Johanna Whernman, Lenche Krcoska, Waad Barash, Leonard Baroi, William Whernman against MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P BARR, ICE/DHS, Chad F. Wolf, Receipt No: AMIEDC-7847312 - Fee: $ 5. (Rhee, Jeannie) (Entered: 06/05/2020)

06/05/2 020

98 MOTION for Temporary Restraining Order by Waad Barash, Leonard Baroi, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, William Whernman. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1-Declaration of Katherine C. McKenzie, # 3 Exhibit 2-Third Supplemental Declaration of Homer Venters, # 4 Exhibit 3-Declaration of My Khanh Ngo, # 5 Exhibit 4-Declaration of Aaron Haier, # 6 Exhibit 5Declaration of Sam Barash, # 7 Exhibit 6-Declaration of Leonard Baroi, # 8 Exhibit 7-Declaration of Jonathan Golden, # 9 Exhibit 8-Declaration of Lenche Krcoska, # 10 Exhibit 9-Declaration of Johandry Ley Santana, # 11 Exhibit 10-Declaration of Johanna Whernman, # 12 Exhibit 11Declaration of William Whernman) (Rhee, Jeannie) (Entered: 06/05/2020)

06/05/2 020

99 SEALED EXHIBIT 1-Declaration of Katherine C. McKenzie, Exhibit 5Declaration of Sam Barash, Exhibit 6-Declaration of Leonard Baroi, Exhibit 7Declaration of Jonathan, Exhibit 8-Declaration of Lenche Krcoska, Exhibit 9Declaration of Johandry Ley Santana, Exhibit 10-Declaration of Johanna Whernman, and Exhibit 11-Declaration of William Whernman re 98 MOTION for Temporary Restraining Order by Waad Barash, Leonard Baroi, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, William Whernman. (Attachments: # 1 Exhibit 5-Declaration of Sam Barash, # 2 Exhibit 6-Declaration of Leonard Baroi, # 3 Exhibit 7-Declaration of Jonathan, # 4 Exhibit 8-Declaration of Lenche Krcoska, # 5 Exhibit 9Declaration of Johandry Ley Santana, # 6 Exhibit 10-Declaration of Johanna Whernman, # 7 Exhibit 11-Declaration of William Whernman) (Rhee, Jeannie) (Entered: 06/05/2020)

06/09/2 100 ORDER Regarding Production of Medical Records and Facilitation of

020

Releases. Signed by District Judge Judith E. Levy. (WBar) (Entered:

06/09/2020)

06/10/2 101 RESPONSE to 98 MOTION for Temporary Restraining Order filed by Rebecca

020

Adducci. (Attachments: # 1 Exhibit McClain Declaration, # 2 Exhibit Labadini

Declaration, # 3 Exhibit Wandyg Declaration, # 4 Exhibit Hackett Declaration,

# 5 Exhibit Mitchell Declaration, # 6 Exhibit Ankenbauer I Declaration,

# 7 Exhibit Ankenbauer II Declaration, # 8 Exhibit Jacobs Declaration,

# 9 Exhibit CDC FAQ for Detention, # 10 Exhibit Hypertension and COVID-19

Article, # 11 Exhibit Domestic Abuse Article) (Newby, Jennifer) (Entered:

06/10/2020)

06/10/2 102 SEALED EXHIBIT McClain Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 103 SEALED EXHIBIT Labadini Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 104 SEALED EXHIBIT Wandyg Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 105 SEALED EXHIBIT Hackett Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 106 SEALED EXHIBIT Mitchell Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 107 SEALED EXHIBIT Ankenbauer I Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/10/2 108 SEALED EXHIBIT Ankenbauer II Declaration re 101 Response to Motion,, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 06/10/2020)

06/11/2 109 NOTICE by Rebecca Adducci re 101 Response to Motion,, Supplemental

020

Authority (Attachments: # 1 Exhibit Cameron v Bouchard) (Newby, Jennifer)

(Entered: 06/11/2020)

06/12/2 110 TRANSCRIPT of Motion Hearing held on 4/3/2020. (Court

020

Reporter/Transcriber: Christin E. Russell) (Number of Pages: 61) The parties

have 21 days to file with the court and Court Reporter/Transcriber a Redaction

Request of this transcript. If no request is filed, the transcript may be made

remotely electronically available to the public without redaction after 90 days.

Redaction Request due 7/6/2020. Redacted Transcript Deadline set for

7/13/2020. Release of Transcript Restriction set for 9/10/2020. Transcript may

be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber before the deadline for Release of Transcript Restriction.

After that date, the transcript is publicly available. (Russell, C.) (Entered:

06/12/2020)

06/12/2 111 PROPOSED PLANS FOR PRODUCING MEDICAL RECORDS /

020

REPORT by Qaid Alhalmi, Baldemar Barajas Santoyo, Waad Barash, Leonard

Baroi, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Julio Fernando Medina Euceda, Isaac Orta Vieyra, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang (Rhee, Jeannie) (Entered: 06/12/2020)

06/14/2 112 MOTION to Certify Class by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

020

Cardona Ramirez, Guo Yan Lin Castro, Jose Mauricio Garcia Toledo, Jose

Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez

Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa

Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Miriam Aukerman, # 3 Exhibit B - Declaration of Dr. Stockton M. Mayer, # 4 Exhibit C - Class Certification Declaration of Dr. Homer Venters) (Rhee, Jeannie) (Entered: 06/14/2020)

06/14/2 113 MOTION for Leave to File Excess Pages by Qaid Alhalmi, Waad Barash,

020

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 06/14/2020)

06/15/2 114 SEALED EXHIBIT Supplemental Expert Declaration re

020

Hypertension re 101 Response to Motion,, by Rebecca Adducci. (Newby,

Jennifer) (Entered: 06/15/2020)

06/15/2 115 EXHIBIT Supplemental Expert Declaration re Hypertension re 101 Response

020

to Motion,, by Rebecca Adducci (Newby, Jennifer) (Entered: 06/15/2020)

06/15/2 116 MOTION for Leave to File Excess Pages by Waad Barash, Lenche Krcoska,

020

Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, William

Whernman. (Rhee, Jeannie) (Entered: 06/15/2020)

06/15/2 117 REPLY to Response re 98 MOTION for Temporary Restraining Order filed by

020

Waad Barash, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana,

Johanna Whernman, William Whernman. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit A - Declaration of John Hilt, # 3 Exhibit B - Respondents' Second

Supplement to its Responses and Objections to Petitioners' First Set of

Expedited Interrogatories, # 4 Exhibit C - Declaration of Gregg Gonsalves,

# 5 Exhibit D - Declaration of Sam Barash, # 6 Exhibit E - Enforcement and

Removal Operations COVID-19 Pandemic Response Requirements) (Rhee,

Jeannie) (Entered: 06/15/2020)

06/16/2 020

TEXT-ONLY ORDER Granting 113 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 06/16/2020)

06/16/2 020

TEXT-ONLY ORDER Granting 116 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 06/16/2020)

06/16/2 118 ORDER Regarding Production of Medical Records. Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 06/16/2020)

06/16/2 119 MOTION for Leave to File a Supplemental Exhibit by Rebecca Adducci.

020

(Attachments: # 1 Exhibit Supplemental Declaration) (Newby, Jennifer)

(Entered: 06/16/2020)

06/17/2 020

TEXT-ONLY ORDER Granting 119 MOTION for Leave to File a Supplemental Exhibit filed by Rebecca Adducci. Signed by District Judge Judith E. Levy. (WBar) (Entered: 06/17/2020)

06/17/2 120 EXHIBIT Supplemental Declaration re 101 Response to Motion,, by Rebecca

020

Adducci (Newby, Jennifer) (Entered: 06/17/2020)

06/18/2 121 NOTICE by Waad Barash, Lenche Krcoska, Sergio Perez Pavon, Yohandry

020

Ley Santana, Johanna Whernman, William Whernman re 98 MOTION for

Temporary Restraining Order / Plaintiffs' Notice of Supplemental

Authority (Attachments: # 1 Exhibit A - Savino v. Souza) (Rhee, Jeannie)

(Entered: 06/18/2020)

06/19/2 122 MOTION for Leave to File Additional Evidence by Waad Barash, Lenche

020

Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman,

William Whernman. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A -

Declaration of Sarah Maneval, # 3 Exhibit B - Declaration of John Hilt) (Rhee,

Jeannie) (Entered: 06/19/2020)

06/22/2 020

TEXT-ONLY ORDER Granting 122 MOTION for Leave to File Additional Evidence. Signed by District Judge Judith E. Levy. (WBar) (Entered: 06/22/2020)

06/26/2 123 NOTICE of Appearance by Kevin Hirst on behalf of All Defendants. (Hirst,

020

Kevin) (Entered: 06/26/2020)

06/26/2 124 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 7/1/2020 10:30 AM before District Judge Judith E. Levy (WBar)

(Entered: 06/26/2020)

06/26/2 125 MOTION for Leave to File Excess Pages by All Defendants. (Hirst, Kevin)

020

(Entered: 06/26/2020)

06/26/2 126 RESPONSE to 112 MOTION to Certify Class filed by All Defendants. (Hirst,

020

Kevin) (Entered: 06/26/2020)

06/28/2 127 OPINION AND ORDER Granting in Part and Denying in Part 98 Plaintiffs'

020

Motion for Temporary Restraining Order as Preliminary Injunction. Signed by

District Judge Judith E. Levy. (MacKay, K) (Entered: 06/28/2020)

06/30/2 020

TEXT-ONLY ORDER Granting 125 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (MacKay, K) (Entered: 06/30/2020)

06/30/2 128 MOTION for Evidentiary Hearing and Appointment of Rule 706 Expert by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Exhibit A - Declaration of Jonathan M. Silberstein-Loeb)

(Rhee, Jeannie) (Entered: 06/30/2020)

06/30/2 129 SEALED EXHIBIT A to the Declaration of Jonathan M. Silberstein-

020

Loeb re 128 MOTION for Evidentiary Hearing and Appointment of Rule 706

Expert by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez,

Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez

Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa

Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 06/30/2020)

07/01/2 130 Emergency MOTION to Intervene and Brief in Support by Zaid Shaher

020

Mohammad al-Araj, Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero

Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Supplemental Complaint, # 3 Exhibit B - Motion for

Temporary Restraining Order and Brief and Declaration in Support Thereof

(Redacted), # 4 Exhibit C - Declaration of Arno Vosk, M.D (Redacted),

# 5 Exhibit D - Defendants Response to June 16 Order (Redacted), # 6 Exhibit

E - Defendants Interrogatory Response 11 (Redacted), # 7 Exhibit F -

Declaration of Darren Gardner, # 8 Exhibit G - U.S. Immigration & Customs

Enforcement, ICE Guidance on COVID-19, # 9 Exhibit H - Declaration of Zaid

Shaher Mohammad Al-Araj (Redacted), # 10 Exhibit I - Declaration of

Ahammad Ali (Redacted), # 11 Exhibit J - Declaration of Ziggy Marcus Garvie

(Redacted), # 12 Exhibit K - Declaration of Ollie Guerrero (Redacted),

# 13 Exhibit L - Declaration of Gan Jin (Redacted), # 14 Exhibit M -

Declaration of Tauqir Niazi (Redacted), # 15 Exhibit N - Declaration of Pedro

Quijada (Redacted), # 16 Exhibit O - Declaration of Veralicia Arana

Hernandez) (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 131 SEALED EXHIBIT B - Motion for Temporary Restraining Order and Brief and

020

Declaration in Support Thereof re 130 Emergency MOTION to Intervene and

Brief in Support by Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero

Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid Shaher Mohammad al-

Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 132 SEALED EXHIBIT C - Declaration of Arno Vosk, M.D re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 133 SEALED EXHIBIT D - Defendants Response to June 16

020

Order re 130 Emergency MOTION to Intervene and Brief in Support by

Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir

Niazi, Pedro Quijada, Zaid Shaher Mohammad al-Araj. (Rhee, Jeannie)

(Entered: 07/01/2020)

07/01/2 134 SEALED EXHIBIT E - Defendants Interrogatory Response

020

11 re 130 Emergency MOTION to Intervene and Brief in Support by Ahammad

Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi,

Pedro Quijada, Zaid Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered:

07/01/2020)

07/01/2 135 SEALED EXHIBIT H - Declaration of Zaid Shaher Mohammad Al-

020

Araj re 130 Emergency MOTION to Intervene and Brief in Support by

Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir

Niazi, Pedro Quijada, Zaid Shaher Mohammad al-Araj. (Rhee, Jeannie)

(Entered: 07/01/2020)

07/01/2 136 SEALED EXHIBIT I - Declaration of Ahammad Ali re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 137 SEALED EXHIBIT J - Declaration of Ziggy Marcus Garvie re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 138 SEALED EXHIBIT K - Declaration of Ollie Guerrero re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 139 SEALED EXHIBIT L - Declaration of Gan Jin re 130 Emergency MOTION to

020

Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus Garvie, Juan

Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid Shaher

Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 140 SEALED EXHIBIT M - Declaration of Tauqir Niazi re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 141 SEALED EXHIBIT N - Declaration of Pedro Quijada re 130 Emergency

020

MOTION to Intervene and Brief in Support by Ahammad Ali, Ziggy Marcus

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada, Zaid

Shaher Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/01/2020)

07/01/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Zoom Status Conference held on 7/1/2020. (Court Reporter: David Yarbrough) (MacKay, K) (Entered: 07/01/2020)

07/01/2 142 ORDER Granting Discovery. Signed by District Judge Judith E. Levy.

020

(MacKay, K) (Entered: 07/01/2020)

07/02/2 143 STIPULATION AND ORDER Regarding Schedule and 128 Motion for

020

Evidentiary Hearing. Motion Hearing set for 8/11/2020 at 1:00 PM before

District Judge Judith E. Levy **PLEASE SEE ORDER FOR

DEADLINES** Signed by District Judge Judith E. Levy. (MacKay, K)

(Entered: 07/02/2020)

07/05/2 144 REPLY to Response re 112 MOTION to Certify Class filed by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 07/05/2020)

07/05/2 145 MOTION for Leave to File Excess Pages by Qaid Alhalmi, Waad Barash,

020

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 07/05/2020)

07/06/2 020

TEXT-ONLY ORDER Granting 145 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 07/06/2020)

07/07/2 146 RESPONSE to 128 MOTION for Evidentiary Hearing and Appointment of Rule

020

706 Expert filed by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM

P BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 07/07/2020)

07/07/2 147 Second MOTION to Expedite Discovery, Status Reports, and Client Access by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Proposed Notice of

30(b)(6) Deposition, # 3 Exhibit B - May 15, 2020 Letter from M. Mendelsohn

to M. Newby, # 4 Exhibit C - June 4, 2020 Letter from M. Mendelsohn to J.

Newby, # 5 Exhibit D - June 9, 2020 Letter from J. Newby to M. Mendelsohn,

# 6 Exhibit E - June 19, 2020 Email from S. Lawyer to J. Newby, # 7 Exhibit F

- June 23, 2020 Email from J. Newby to S. Lawyer, # 8 Exhibit G - Defendants'

Responses & Objections to Plaintiffs' First Set of Expedited Interrogatories,

# 9 Exhibit H - Defendants' First Supplemental Responses & Objections to

Plaintiffs' First Set of Requests for Expedited Production of Documents) (Rhee,

Jeannie)[MOTION FOR RULE 30(B)(6) DEPOSITION OF U.S.

IMMIGRATION AND CUSTOMS ENFORCEMENT] Modified on 7/8/2020

(DPer). (Entered: 07/07/2020)

07/09/2 148 NOTICE of Appearance by Stanton Lawyer on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Sergio Perez Pavon, Pedro

Quijada, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry

Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj. (Lawyer,

Stanton) (Entered: 07/09/2020)

07/13/2 149 REPLY to Response re 128 MOTION for Evidentiary Hearing and

020

Appointment of Rule 706 Expert filed by Qaid Alhalmi, Waad Barash, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 07/13/2020)

07/14/2 150 NOTICE of Appearance by Katharine Warren Gadsden on behalf of Qaid

020

Alhalmi, Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Leonard

Baroi, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Ziggy Marcus Garvie, Jose

Gomez Santiz, Juan Guerrero Bernardez, Gan Jin, Lenche Krcoska, Julio

Fernando Medina Euceda, Tauqir Niazi, Isaac Orta Vieyra, Sergio Perez Pavon,

Pedro Quijada, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj.

(Gadsden, Katharine) (Entered: 07/14/2020)

07/14/2 151 NOTICE of Appearance by Oleg Shik on behalf of Qaid Alhalmi, Ahammad

020

Ali, Baldemar Barajas Santoyo, Waad Barash, Leonard Baroi, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan

Guerrero Bernardez, Gan Jin, Lenche Krcoska, Julio Fernando Medina Euceda,

Tauqir Niazi, Isaac Orta Vieyra, Sergio Perez Pavon, Pedro Quijada, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang, Zaid Shaher Mohammad al-Araj. (Shik, Oleg) (Entered: 07/14/2020)

07/15/2 152 RESPONSE to 130 Emergency MOTION to Intervene and Brief in

020

Support filed by Rebecca Adducci. (Attachments: # 1 Exhibit Salvatera

Declaration) (Newby, Jennifer) (Entered: 07/15/2020)

07/17/2 153 RESPONSE to 147 Second MOTION to Expedite Discovery, Status Reports,

020

and Client Access filed by Rebecca Adducci. (Attachments: # 1 Exhibit Baroi

Removal) (Newby, Jennifer) (Entered: 07/17/2020)

07/22/2 154 MOTION for Leave to File Excess Pages by Ahammad Ali, Ziggy Marcus

020

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Zaid Shaher

Mohammad al-Araj. (Rhee, Jeannie) (Entered: 07/22/2020)

07/22/2 155 REPLY to Response re 130 Emergency MOTION to Intervene and Brief in

020

Support filed by Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero

Bernardez, Gan Jin, Tauqir Niazi, Zaid Shaher Mohammad al-Araj.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - April 8, 2020 ACLU Letter

to Court, # 3 Exhibit B - April 8, 2020 Email from Jennifer Newby Concurring

to Conference Summary) (Rhee, Jeannie) (Entered: 07/22/2020)

07/22/2 156 REPLY to Response re 147 Second MOTION to Expedite Discovery, Status

020

Reports, and Client Access filed by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- Chart, # 3 Exhibit B - Proposed Notice of Deposition) (Rhee, Jeannie) (Entered: 07/22/2020)

07/23/2 020

TEXT-ONLY ORDER Granting 154 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 07/23/2020)

07/25/2 157 TRANSCRIPT of Status Conference held on June 5, 2020. (Court Reporter:

020

Darlene K. May) (Number of Pages: 33) The parties have 21 days to file with

the court and Court Reporter a Redaction Request of this transcript. If no

request is filed, the transcript may be made remotely electronically available to

the public without redaction after 90 days. Redaction Request due 8/17/2020.

Redacted Transcript Deadline set for 8/25/2020. Release of Transcript

Restriction set for 10/23/2020. Transcript may be viewed at the court public

terminal or purchased through the Court Reporter before the deadline for

Release of Transcript Restriction. After that date, the transcript is publicly

available. (May, D) (Entered: 07/25/2020)

07/27/2 158 MOTION to Amend/Correct 127 Order on Motion for TRO by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 07/27/2020)

07/28/2 159 ORDER Requiring Response to 158 Motion to Amend/Correct. Response due

020

with no more than 20 pages by 10:00 a.m. on 8/3/2020, Signed by District

Judge Judith E. Levy. (WBar) (Entered: 07/28/2020)

07/28/2 160 AMENDED ORDER Requiring Plaintiffs to Respond to 158 MOTION to

020

Amend/Correct 127 Order on Motion for TRO filed by Rebecca Adducci.

Signed by District Judge Judith E. Levy. (WBar) (Entered: 07/28/2020)

07/30/2 161 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 8/4/2020 10:30 AM before District Judge Judith E. Levy (WBar)

(Entered: 07/30/2020)

07/31/2 162 OPINION AND ORDER Regarding 112 Motion to Certify Class. Signed by

020

District Judge Judith E. Levy. (WBar) (Entered: 07/31/2020)

08/03/2 163 RESPONSE to 158 MOTION to Amend/Correct 127 Order on Motion for

020

TRO filed by Qaid Alhalmi, Ahammad Ali, Baldemar Barajas Santoyo, Waad

Barash, Leonard Baroi, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Ziggy Marcus

Garvie, Jose Gomez Santiz, Juan Guerrero Bernardez, Gan Jin, Lenche

Krcoska, Julio Fernando Medina Euceda, Tauqir Niazi, Isaac Orta Vieyra,

Sergio Perez Pavon, Pedro Quijada, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang, Zaid Shaher

Mohammad al-Araj. (Rhee, Jeannie) (Entered: 08/03/2020)

08/03/2 164 MOTION to Supplement Record re 147 Second MOTION to

020

Expedite Discovery, Status Reports, and Client Access by Qaid Alhalmi, Waad

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Calhoun COVID-19 Test Results [Redacted], # 3 Exhibit B - Calhoun Coronavirus Protocol Memo, # 4 Exhibit C Coronavirus Questionnaire, # 5 Exhibit D - May 15, 2020 Letter, # 6 Exhibit E - June 9, 2020 Letter, # 7 Exhibit F - July 30, 2020 Email, # 8 Exhibit G - ICE ERO Pandemic Response Requirements) (Rhee, Jeannie) (Entered: 08/03/2020)

08/03/2 165 SEALED EXHIBIT A - Calhoun COVID-19 Test Results re 164 MOTION to

020

Supplement Record re 147 Second MOTION to Expedite Discovery, Status

Reports, and Client Access by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 08/03/2020)

08/04/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 8/4/2020 (Court Reporter: None Present, Not on the Record) (WBar) (Entered: 08/04/2020)

08/04/2 166 ORDER granting in part 147 Motion for Expedited Discovery. Signed by

020

District Judge Judith E. Levy. (WBar) (Entered: 08/04/2020)

08/04/2 167 ORDER granting in part and denying in part 128 Motion for Evidentiary

020

Hearing and Appointment of Rule 706 Expert. Signed by District Judge Judith

E. Levy. (WBar) (Entered: 08/04/2020)

08/04/2 168 ORDER ESTABLISHING BAIL HEARING PROCEDURES. Signed by

020

District Judge Judith E. Levy. (WBar) (Entered: 08/04/2020)

08/04/2 169 NOTICE TO APPEAR BY VIDEO CONFERENCE: BAIL Hearing set for

020

8/10/2020 10:30 AM before District Judge Judith E. Levy |Zoom Webinar

Information:

https://zoom.us/j/98113226121?pwd=dUlkV0dKTVdsdE5aL0N2aHJVYnYrZz

09 Passcode: 413928 Or iPhone one-tap : US:

+16027530140,,98113226121#,,,,,,0#,,413928# or

+12133388477,,98113226121#,,,,,,0#,,413928#| (WBar) (Entered: 08/04/2020)

08/07/2 020

TEXT-ONLY NOTICE: Bail Hearing on 8/10/2020 is Cancelled re 169 Notice to Appear, (WBar) (Entered: 08/07/2020)

08/07/2 170 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 8/10/2020 10:30 AM before District Judge Judith E. Levy (WBar)

(Entered: 08/07/2020)

08/07/2 171 NOTICE of Appearance by Mark Mendelsohn on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Isaac Orta Vieyra, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj. (Mendelsohn, Mark) (Entered: 08/07/2020)

08/07/2 172 NOTICE of Appearance by Darren Gardner on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Isaac Orta Vieyra, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj.

(Gardner, Darren) (Entered: 08/07/2020)

08/07/2 173 NOTICE of Appearance by Joseph Granzotto on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Isaac Orta Vieyra, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj.

(Granzotto, Joseph) (Entered: 08/07/2020)

08/07/2 174 NOTICE of Appearance by Breanne Palmer on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Isaac Orta Vieyra, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj.

(Palmer, Breanne) (Entered: 08/07/2020)

08/10/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 8/10/2020 (Court Reporter: David Yarbrough) (WBar) (Entered: 08/10/2020)

08/10/2 175 NOTICE of Appearance by Eunice Hyunhye Cho on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Leonard Baroi, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan

Guerrero Bernardez, Gan Jin, Lenche Krcoska, Julio Fernando Medina Euceda,

Tauqir Niazi, Isaac Orta Vieyra, Sergio Perez Pavon, Pedro Quijada, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang, Zaid Shaher Mohammad al-Araj. (Cho, Eunice) (Entered: 08/10/2020)

08/10/2 176 NOTICE of Appearance by David C Fathi on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Leonard Baroi, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan

Guerrero Bernardez, Gan Jin, Lenche Krcoska, Julio Fernando Medina Euceda,

Tauqir Niazi, Isaac Orta Vieyra, Sergio Perez Pavon, Pedro Quijada, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang, Zaid Shaher Mohammad al-Araj. (Fathi, David) (Entered: 08/10/2020)

08/12/2 177 ORDER REGARDING CASE MANAGEMENT AND

020

AMENDING 167 Order. Signed by District Judge Judith E. Levy. (WBar)

(Entered: 08/12/2020)

08/12/2 178 ORDER REGARDING BAIL APPLICATIONS. Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 08/12/2020)

08/12/2 179 ORDER REGARDING CONDITIONS OF RELEASE. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 08/12/2020)

08/13/2 020

TEXT-ONLY ORDER Granting 164 MOTION to Supplement Record. Signed by District Judge Judith E. Levy. (WBar) (Entered: 08/13/2020)

08/14/2 020

TEXT-ONLY ORDER: The deadline set in ECF 167 for the parties to submit a list of proposed topics to be addressed at an evidentiary hearing is extended to Friday, October 9, 2020. Signed by District Judge Judith E. Levy. (WBar) (Entered: 08/14/2020)

08/14/2 180 MEMORANDUM in Support of Bail Applications by Ahammad Ali, Ziggy

020

Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi (Rhee,

Jeannie) (Entered: 08/14/2020)

08/14/2 181 SEALED MOTION for Bail Application re 180 Memorandum by Ahammad

020

Ali. (Rhee, Jeannie) (Entered: 08/14/2020)

08/14/2 182 SEALED MOTION for Bail Application re 180 Memorandum by Ziggy

020

Marcus Garvie. (Rhee, Jeannie) (Entered: 08/14/2020)

08/14/2 183 SEALED MOTION for Bail Application re 180 Memorandum by Juan

020

Guerrero Bernardez. (Rhee, Jeannie) (Entered: 08/14/2020)

08/14/2 184 SEALED MOTION for Bail Application re 180 Memorandum by Gan Jin.

020

(Rhee, Jeannie) (Entered: 08/14/2020)

08/14/2 185 SEALED MOTION for Bail Application re 180 Memorandum by Tauqir Niazi.

020

(Rhee, Jeannie) (Entered: 08/14/2020)

08/18/2 186 SEALED RESPONSE re 181 Sealed Motion for Bail Application by Ali

020

Ahammad by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P

BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 08/18/2020)

08/18/2 187 SEALED RESPONSE re 182 Sealed Motion for Bond Application by Ziggy

020

Marcus Garvie by MATTHEW T. ALBENCE, Rebecca Adducci, WILLIAM P

BARR, ICE/DHS, Chad F. Wolf. (Darling, Bradley) (Entered: 08/18/2020)

08/18/2 188 SEALED Response to Bail Application re 184 SEALED MOTION for Bail

020

Application re 180 Memorandum by Gan Jin. by Rebecca Adducci. (Newby,

Jennifer) (Entered: 08/18/2020)

08/18/2 189 SEALED Response to Bail Application re 183 SEALED MOTION for Bail

020

Application re 180 Memorandum by Juan Guerrero Bernardez. by Rebecca

Adducci. (Newby, Jennifer) (Entered: 08/18/2020)

08/18/2 190 SEALED Response to Bail Application re 185 SEALED MOTION for Bail

020

Application re 180 Memorandum by Tauqir Niazi. by Rebecca Adducci.

(Newby, Jennifer) (Entered: 08/18/2020)

08/19/2 191 ORDER AMENDING GENERAL CLASS AND HABEAS LITIGATION

020

GROUP DEFINITIONS 162 . Signed by District Judge Judith E. Levy. (WBar)

(Entered: 08/19/2020)

08/20/2 192 MOTION for Leave to File Excess Pages by Ahammad Ali, Ziggy Marcus

020

Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi. (Rhee, Jeannie)

(Entered: 08/20/2020)

08/20/2 193 MOTION to Strike 190 Sealed Document - Other (Motion to Strike Privileged

020

Attorney-Client Communications and for Protection of Privileged

Communications) by Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero

Bernardez, Gan Jin, Tauqir Niazi. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit A-Cover Letter and Survey, # 3 Exhibit B-Calhoun Inmate

Handbook, # 4 Exhibit C-ICE National Detention Standards, Section 5.1)

(Rhee, Jeannie) (Entered: 08/20/2020)

08/20/2 194 REPLY to Response re 182 SEALED MOTION for Bail Application

020

re 180 Memorandum by Ziggy Marcus Garvie., 183 SEALED MOTION for

Bail Application re 180 Memorandum by Juan Guerrero

Bernardez., 184 SEALED MOTION for Bail Application

re 180 Memorandum by Gan Jin., 185 SEALED MOTION for Bail Application

re 180 Memorandum by Tauqir Niazi., 181 SEALED MOTION for Bail

Application re 180 Memorandum by Ahammad Ali. (Reply Cover Brief in

Support of Bail Applications) filed by Ahammad Ali, Ziggy Marcus Garvie,

Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A-Aug. 17, 2020 Email from Jennifer Newby, # 3 Exhibit

B-Aug. 11, 2020 Email from J.Newby to W. Barkholz) (Rhee, Jeannie)

(Entered: 08/20/2020)

08/20/2 195 SEALED REPLY to Response re 181 Sealed Motion by Ahammad Ali.

020

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A-Aug. 20, 2020 Emergency

Motion to Stay Deportation filed before the Board of Immigration Appeals,

# 3 Exhibit B-November 3, 2016 Board of Immigration Appeals Decision)

(Rhee, Jeannie) (Entered: 08/20/2020)

08/20/2 196 SEALED REPLY to Response re 182 Sealed Motion by Ziggy Marcus Garvie.

020

(Rhee, Jeannie) (Entered: 08/20/2020)

08/20/2 197 SEALED REPLY to Response re 183 Sealed Motion by Juan Guerrero

020

Bernardez. (Rhee, Jeannie) (Entered: 08/20/2020)

08/20/2 198 SEALED REPLY to Response re 184 Sealed Motion by Gan Jin. (Attachments:

020

# 1 Index of Exhibits, # 2 Exhibit A-July 1, 2020 Order of the Immigration

Judge, # 3 Exhibit B-July 21, 2020 Decision of the Immigration Judge,

# 4 Exhibit C-July 21, 2020 Decision of the Immigration Judge) (Rhee, Jeannie)

(Entered: 08/20/2020)

08/20/2 199 SEALED REPLY to Response re 185 Sealed Motion by Tauqir Niazi.

020

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A-Declaration of Elba Juarez

dated August 19, 2020, # 3 Exhibit B-Declaration of Tauqir Niazi dated August

19, 2020, # 4 Exhibit C-Declaration of Maribel Avelar dated August 20, 2020)

(Rhee, Jeannie) (Entered: 08/20/2020)

08/21/2 020

TEXT-ONLY ORDER Granting 192 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 08/21/2020)

08/21/2 200 ORDER Requiring Response to 193 Motion to Strike; A full response is due by

020

no later than 10:00am on Tuesday 8/25/2020, Signed by District Judge Judith E.

Levy. (WBar) (Entered: 08/21/2020)

08/21/2 201 FIRST AMENDED STIPULATED PROTECTIVE ORDER, Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 08/21/2020)

08/24/2 202 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 8/26/2020 10:00 AM before District Judge Judith E. Levy (WBar)

(Entered: 08/24/2020)

08/24/2 203 SEALED Notice of Undisputed Habeas Litigation Group Members by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Aug. 11, 2020 Email from

J. Newby, # 3 Exhibit B - Aug. 18, 2020 Email from J. Newby, # 4 Exhibit C -

Aug. 19, 2020 Email from J. Newby, # 5 Exhibit D - Aug. 20, 2020 Email from

J. Newby, # 6 Exhibit E - Aug. 21, 2020 Email from D. Gardner) (Rhee,

Jeannie) (Entered: 08/24/2020)

08/24/2 204 MOTION for Inclusion in the Habeas Litigation Group by Zaid Shaher

020

Mohammad al-Araj. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A -

Declaration of Dr. Adam Lauring (REDACTED), # 3 Exhibit B - Aug. 11,

2020, Email from J. Newby (REDACTED)) (Rhee, Jeannie) (Entered:

08/24/2020)

08/24/2 205 SEALED MOTION for Inclusion in the Habeas Litigation Group by Zaid

020

Shaher Mohammad al-Araj. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- Declaration of Dr. Adam Lauring (UNREDACTED), # 3 Exhibit B - Aug. 11,

2020, Email from J. Newby (UNREDACTED)) (Rhee, Jeannie) (Entered:

08/24/2020)

08/24/2 206 SEALED MOTION for Bail Application Maikel Antonio Cutino-Dominguez by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 08/24/2020)

08/24/2 207 SEALED MOTION for Bail Application of Pierre Kadesipe by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 08/24/2020)

08/24/2 208 SEALED MOTION for Bail Application of Humberto Gutierrez Millares by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 08/24/2020)

08/25/2 209 RESPONSE to 193 MOTION to Strike 190 Sealed Document - Other (Motion

020

to Strike Privileged Attorney-Client Communications and for Protection of

Privileged Communications) filed by Rebecca Adducci. (Attachments:

# 1 Exhibit 08-06-20 Email, # 2 Exhibit 08-10-20 Email, # 3 Exhibit 08-14-20

Email) (Newby, Jennifer) (Entered: 08/25/2020)

08/25/2 210 [UNSEALED PURSUANT TO 12/01/20/ ORDER] ORDER

020

granting 181 Sealed Motion; denying as moot 182 Sealed Motion;

granting 183 Sealed Motion; granting 184 Sealed Motion; granting 185 Sealed

Motion. Signed by District Judge Judith E. Levy. (WBar) Modified on

12/1/2020 (DPer). (Entered: 08/25/2020)

08/25/2 211 NOTICE by Rebecca Adducci re 158 MOTION to Amend/Correct 127 Order

020

on Motion for TRO of Supplemental Authority (Attachments: # 1 Exhibit Hope

Decision) (Newby, Jennifer) (Entered: 08/25/2020)

08/25/2 212 OPINION AND ORDER denying 158 Motion to Amend. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 08/25/2020)

08/25/2 213 SEALED MOTION for Bail Application of Tania Ramirez Soto by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 08/25/2020)

08/26/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 8/26/2020 (Court Reporter: Darlene May) (WBar) (Entered: 08/26/2020)

08/26/2 214 CASE MANAGEMENT ORDER; Reply due by 9/3/2020 to 193 MOTION to

020

Strike; Signed by District Judge Judith E. Levy. (See order for additional dates)

(WBar) (Entered: 08/26/2020)

08/26/2 215 SEALED MOTION for Bail Application of Yara Teixeira Da Graca

020

Mendonca by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 08/26/2020)

08/27/2 216 SEALED RESPONSE re 207 Sealed Motion, Response to Kadesipe Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 08/27/2020)

08/27/2 217 SEALED RESPONSE re 208 Sealed Motion, response to Gutierrez Millares

020

Bail Application by Rebecca Adducci. (Darling, Bradley) (Entered: 08/27/2020)

08/27/2 218 SEALED RESPONSE re 206 Sealed Motion, Bail Application of Maikel

020

Antonio Cutino-Dominguez by Rebecca Adducci. (Attachments: # 1 Exhibit

Excerpt of Hazel Deposition, # 2 Exhibit Bond Memorandum) (Newby,

Jennifer) (Entered: 08/27/2020)

08/28/2 219 NOTICE by Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez,

020

Gan Jin, Tauqir Niazi, Zaid Shaher Mohammad al-Araj of withdrawal

of 130 Emergency MOTION to Intervene and Brief in Support . (Rhee, Jeannie)

(Entered: 08/28/2020)

08/28/2 220 SEALED RESPONSE re 213 Sealed Motion, for bail by Tania Ramirez Soto by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 08/28/2020)

08/31/2 221 SECOND AMENDED STIPULATED PROTECTIVE ORDER, Signed by

020

District Judge Judith E. Levy. (WBar) (Entered: 08/31/2020)

08/31/2 222 SEALED RESPONSE re 215 Sealed Motion, Response to Mendonca Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 08/31/2020)

08/31/2 223 SEALED MOTION for Bail Application of Frederick Williams by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 08/31/2020)

08/31/2 224 MOTION for Extension of Time to File Response/Reply as to 216 Sealed

020

Response to Motion by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 08/31/2020)

08/31/2 225 SEALED REPLY to Response re 206 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Excerpts of Randy Hazel Deposition Transcripts,

# 3 Exhibit B - ICE Guidance of COVID-19, # 4 Exhibit C - August 28, 2020

Email from M. Aukerman to J. Newby et al, # 5 Exhibit D - Supplemental

Declaration of Michel Cutino-Dominguez) (Rhee, Jeannie) (Entered:

08/31/2020)

08/31/2 226 SEALED REPLY to Response re 208 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Aug. 31, 2020 Email from M. Ngo to Officer

Zimmerman, # 3 Exhibit B - Declaration of Darlene Boggs, dated Aug. 31,

2020, # 4 Exhibit C - Supplementation Declaration of Niurka Millares Promier,

dated Aug. 31. 2020, # 5 Exhibit D - BIA Decision) (Rhee, Jeannie) (Entered:

08/31/2020)

09/01/2 020

TEXT-ONLY ORDER Granting 224 MOTION for Extension of Time to File Reply. Signed by District Judge Judith E. Levy. (WBar) (Entered: 09/01/2020)

09/01/2 227 STIPULATED ORDER Withdrawing 205 SEALED MOTION for Inclusion in

020

the Habeas Litigation Group by Zaid Shaher Mohammad al-Araj. Signed by

District Judge Judith E. Levy. (WBar) (Entered: 09/01/2020)

09/01/2 228 SEALED REPLY to Response re 215 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - August 25, 2020 Email from Consulate General of Cape Verde, # 3 Exhibit B - September 1, 2020 Email from Consulate General of Cape Verde) (Rhee, Jeannie) (Entered: 09/01/2020)

09/01/2 229 SEALED REPLY to Response re 213 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Declaration of Kathleen Fish, # 3 Exhibit B -

Declaration of Tania Ramirez Soto, # 4 Exhibit C - Supplemental Declaration

of Danietsys Acosta Ramirez) (Rhee, Jeannie) (Entered: 09/01/2020)

09/02/2 230 SEALED MOTION for Bail Application of Marius Gapsys by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/02/2020)

09/02/2 231 SEALED REPLY to Response re 207 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Declaration of Melanie Jones, # 3 Exhibit B - Letters

from Family Members) (Rhee, Jeannie) (Entered: 09/02/2020)

09/03/2 232 SEALED RESPONSE re 223 Sealed Motion, for bail by Frederick Williams by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 09/03/2020)

09/03/2 233 MOTION for Inclusion of Andrei Skripkov in the Habeas Litigation Group by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Dr.

Katherine C. McKenzie [Redacted]) (Rhee, Jeannie) (Entered: 09/03/2020)

09/03/2 234 SEALED EXHIBIT A - Declaration of Dr. Katherine C.

020

McKenzie re 233 MOTION for Inclusion of Andrei Skripkov in the Habeas

Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/03/2020)

09/03/2 235 SEALED EXHIBIT B - Excerpts of Medical Records re 233 MOTION for

020

Inclusion of Andrei Skripkov in the Habeas Litigation Group by Qaid Alhalmi,

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/03/2020)

09/03/2 236 SEALED MOTION for Bail Application for Nazariy Kmet by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/03/2020)

09/03/2 237 MOTION for Inclusion of Travis Symboluk in the Habeas Litigation Group by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Travis

Symboluk [Redacted], # 3 Exhibit B - Declaration of Taryn N. Clark

[Redacted], # 4 Exhibit C - CV of Taryn N. Clark) (Rhee, Jeannie) (Entered:

09/03/2020)

09/03/2 238 SEALED EXHIBIT A - Declaration of Travis Symboluk re 237 MOTION for

020

Inclusion of Travis Symboluk in the Habeas Litigation Group by Qaid Alhalmi,

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/03/2020)

09/03/2 239 SEALED EXHIBIT B - Declaration of Taryn N. Clark re 237 MOTION for

020

Inclusion of Travis Symboluk in the Habeas Litigation Group by Qaid Alhalmi,

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/03/2020)

09/03/2 240 MOTION for Leave to File Excess Pages by Qaid Alhalmi, Waad Barash,

020

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda

Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska,

Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/03/2020)

09/03/2 241 REPLY to Response re 193 MOTION to Strike 190 Sealed Document -

020

Other (Motion to Strike Privileged Attorney-Client Communications and for

Protection of Privileged Communications) filed by Qaid Alhalmi, Waad

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/03/2020)

09/04/2 020

TEXT-ONLY ORDER Granting 240 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 09/04/2020)

09/04/2 242 [UNSEALED PURSUANT OF 12/01/20 ORDER] ORDER

020

granting 206 Sealed Motion; granting 207 Sealed Motion; granting 208 Sealed

Motion; granting 213 Sealed Motion; denying 215 Sealed Motion. Signed by

District Judge Judith E. Levy. (WBar) Modified on 12/1/2020 (DPer). (Entered:

09/04/2020)

09/04/2 243 ORDER CLARIFYING RELEASES UNDER BAIL PROCESS. Signed by

020

District Judge Judith E. Levy. (WBar) (Entered: 09/04/2020)

09/08/2 244 SEALED RESPONSE re 230 Sealed Motion, Bail Application of Marius

020

Gapsys by Rebecca Adducci. (Newby, Jennifer) (Entered: 09/08/2020)

09/08/2 245 SEALED RESPONSE re 236 Sealed Motion, Response to Kmet Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 09/08/2020)

09/08/2 246 MOTION for Withdrawal of Attorney Stanton M.B. Lawyer by Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Sergio Perez Pavon, Pedro

Quijada, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry

Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj. (Lawyer,

Stanton) (Entered: 09/08/2020)

09/08/2 247 SEALED RESPONSE re 223 Sealed Motion, Amended response to bail

020

application of Frederick Williams by Rebecca Adducci. (Newby, Jennifer)

(Entered: 09/08/2020)

09/08/2 248 SEALED MOTION For Bail Application of Kefinba Cisse by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/08/2020)

09/08/2 249 SEALED MOTION For Bail Application of Enrique Camacho Perez by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 09/08/2020)

09/08/2 250 SEALED MOTION For Bail Application of Daniel Martinez-Saavedra by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 09/08/2020)

09/09/2 251 STIPULATED ORDER Extending Date for Reply, Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 09/09/2020)

09/09/2 252 ORDER granting 246 Motion to Withdraw as Attorney.. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 09/09/2020)

09/09/2 253 SEALED MOTION for Bail Application of Nazario Pablo Pablo by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 09/09/2020)

09/09/2 254 SEALED REPLY to Response re 236 Sealed Motion, Reply to Nazariy Kmet

020

Bail Application by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 09/09/2020)

09/09/2 255 [UNSEALED PURSUANT TO 9/13/2020 ORDER] MOTION for Inclusion of

020

Gisli Gislason in the Habeas Litigation Group by Qaid Alhalmi, Waad Barash,

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda

Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska,

Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Gisli Thor Gislason [Redacted], # 3 Exhibit B Declaration and CV of Dr. Charlotte Roy, MD [Redacted], # 4 Exhibit C Excerpts of Gisli Thor Gislasons Medical Records [Filed Under Seal]) (Rhee, Jeannie) Modified on 9/13/2020 (WBar). Modified on 9/22/2020 (WBar). (Entered: 09/09/2020)

09/09/2 256 SEALED EXHIBIT A - Declaration of Gisli Thor

020

Gislason re 255 SEALED MOTION for Inclusion of Gisli Gislason in the

Habeas Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, J by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 09/09/2020)

09/09/2 257 SEALED EXHIBIT B - Declaration and CV of Dr. Charlotte Roy,

020

MD re 255 SEALED MOTION for Inclusion of Gisli Gislason in the Habeas

Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, J by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 09/09/2020)

09/09/2 258 SEALED EXHIBIT C - Excerpts of Gisli Thor Gislasons Medical

020

Records re 255 SEALED MOTION for Inclusion of Gisli Gislason in the

Habeas Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, J by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 09/09/2020)

09/10/2 259 SEALED REPLY to Response re 230 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A

- Sept. 8 Email from B. Darling to W. Barkholz) (Rhee, Jeannie) (Entered:

09/10/2020)

09/10/2 260 SEALED REPLY to Response re 223 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Sept. 10 Email from Arlette Gomez to Monica

Andrade, # 3 Exhibit B - Letter from Frederick Williams) (Rhee, Jeannie)

(Entered: 09/10/2020)

09/10/2 261 SEALED Supplement to Bail Application for Enrique Alonso Camacho

020

Perez re 249 SEALED MOTION For Bail Application of Enrique Camacho

Perez by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez,

Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

Jose Gomez Santiz, by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/10/2020)

09/10/2 262 MOTION to Unseal 255 SEALED MOTION for Inclusion of Gisli Gislason in

020

the Habeas Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, J filed by Jose Mauricio Garcia Toledo, Yohandry Ley

Santana, Amer Toma, Lenche Krcoska, Sergio Perez Pavon, William

Whernman, Johanna Whernman, Jose Gomez Santiz, Guo Yan Lin Castro, Min

Dan Zhang, Tomas Cardona Ramirez, Ruby Briselda Escobar, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Waad Barash, Sergio Brito,

Rudy Sosa Carillo, Qaid Alhalmi by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/10/2020)

09/11/2 263 SEALED RESPONSE re 249 Sealed Motion, Response to Camacho Perez Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 09/11/2020)

09/11/2 264 SEALED RESPONSE re 248 Sealed Motion, Bail Application of Kefinba

020

Cisse by Rebecca Adducci. (Newby, Jennifer) (Entered: 09/11/2020)

09/11/2 265 SEALED RESPONSE re 250 Sealed Motion, Bail Application of Daniel

020

Martinez-Saavedra by Rebecca Adducci. (Newby, Jennifer) (Entered:

09/11/2020)

09/13/2 266 ORDER granting 262 Motion to Unseal. Signed by District Judge Judith E.

020

Levy. (WBar) (Entered: 09/13/2020)

09/14/2 267 SEALED RESPONSE re 253 Sealed Motion, Response to Pablo Pablo Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 09/14/2020)

09/14/2 268 SEALED REPLY to Response re 248 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/14/2020)

09/14/2 269 SEALED REPLY to Response re 250 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/14/2020)

09/15/2 270 RESPONSE to 233 MOTION for Inclusion of Andrei Skripkov in the Habeas

020

Litigation Group filed by Rebecca Adducci. (Attachments: # 1 Exhibit

American Heart Association Guidelines, # 2 Exhibit WHO Situation Report)

(Newby, Jennifer) (Entered: 09/15/2020)

09/15/2 271 SEALED EXHIBIT re 270 Response to Motion, by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 09/15/2020)

09/15/2 272 SEALED EXHIBIT re 270 Response to Motion, by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 09/15/2020)

09/15/2 273 SEALED EXHIBIT re 270 Response to Motion, by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 09/15/2020)

09/15/2 274 SEALED EXHIBIT re 270 Response to Motion, by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 09/15/2020)

09/15/2 275 RESPONSE to 255 SEALED MOTION for Inclusion of Gisli Gislason in the

020

Habeas Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, J filed by Rebecca Adducci. (Newby, Jennifer) (Entered:

09/15/2020)

09/15/2 276 [UNSEALED PURSUANT TO 12/01/20 ORDER] THIRD ORDER on Bail

020

[ 215 , 223 , 230 , 236 ]. Signed by District Judge Judith E. Levy. (Sandusky,

K) Modified on 12/1/2020 (DPer). (Entered: 09/15/2020)

09/15/2 277 RESPONSE to 237 MOTION for Inclusion of Travis Symboluk in the Habeas

020

Litigation Group filed by Rebecca Adducci. (Darling, Bradley) (Entered:

09/15/2020)

09/15/2 278 SEALED EXHIBIT A -- Symboluk Medical Records re 277 Response to Motion

020

by Rebecca Adducci. (Darling, Bradley) (Entered: 09/15/2020)

09/15/2 279 SEALED EXHIBIT B -- Dr. Paul Troost Medical Record

020

Review re 277 Response to Motion by Rebecca Adducci. (Darling, Bradley)

(Entered: 09/15/2020)

09/15/2 280 SEALED REPLY to Response re 249 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/15/2020)

09/15/2 281 SEALED REPLY to Response re 253 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/15/2020)

09/18/2 282 [UNSEALED PURSUANT TO 09/22/20 ORDER] MOTION for Leave to File

020

Reply Briefs in Further Support of Class Members Andrei Skripkov and Travis

Symboluk's Motions for Inclusion in the Habeas Litigation Group

re 237 MOTION for Inclusion of Travis Symboluk in the Habeas Litigation

Group , 233 MOTION for Inclusion of Andrei Skripkov in the Habeas

Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Reply Brief in

Further Support of Motion for Inclusion of Andrei Skripkov, # 3 Exhibit B -

Reply Brief in Further Support of Motion for Inclusion of Travis Symboluk)

(Rhee, Jeannie) Modified on 9/22/2020 (DPer). (Entered: 09/18/2020)

09/18/2 283 SEALED MOTION For Bail Application of Rose Dikeh by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/18/2020)

09/21/2 284 MOTION to Unseal 282 SEALED MOTION for Leave to File Reply Briefs in

020

Further Support of Class Members Andrei Skripkov and Travis Symboluk's

Motions for Inclusion in the Habeas Litigation Group re 237 MOTION for

Inclusion of Travis Symbol filed by Jose Mauricio Garcia Toledo, Yohandry

Ley Santana, Amer Toma, Lenche Krcoska, Sergio Perez Pavon, William

Whernman, Johanna Whernman, Jose Gomez Santiz, Guo Yan Lin Castro, Min

Dan Zhang, Tomas Cardona Ramirez, Ruby Briselda Escobar, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Waad Barash, Sergio Brito, Rudy Sosa Carillo, Qaid Alhalmi by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/21/2020)

09/21/2 285 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 9/25/2020 11:00 AM before District Judge Judith E. Levy (WBar)

(Entered: 09/21/2020)

09/22/2 286 SUR-REPLY re 282 SEALED MOTION for Leave to File Reply Briefs in

020

Further Support of Class Members Andrei Skripkov and Travis Symboluk's

Motions for Inclusion in the Habeas Litigation Group re 237 MOTION for

Inclusion of Travis Symbol ,and Motion for Leave to File Sur-Reply filed by

Rebecca Adducci. (Darling, Bradley) [WRONG EVENT USED -

DOCUMENT IS A MOTION FOR LEAVE TO FILE A SUR-

REPLY]Modified on 9/22/2020 (NAhm). (Entered: 09/22/2020)

09/22/2 287 SEALED EXHIBIT to Defendants' Sur-Reply, Updated Symboluk Medical

020

Records re 286 Sur-Reply, by Rebecca Adducci. (Darling, Bradley) (Entered:

09/22/2020)

09/22/2 288 ORDER granting 284 Motion to unseal. Signed by District Judge Judith E.

020

Levy. (DPer) (Entered: 09/22/2020)

09/22/2 289 ORDER granting 282 Motion for leave to file reply briefs. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 09/22/2020)

09/23/2 290 [UNSEALED PURSUANT TO 12/01/20 ORDER] FOURTH ORDER

020

on 249 SEALED MOTION For Bail Application, 253 SEALED MOTION for

Bail Application, 248 SEALED MOTION For Bail

Application, 250 SEALED MOTION For Bail Application. Signed by District

Judge Judith E. Levy. (WBar) Modified on 12/1/2020 (DPer). (Entered:

09/23/2020)

09/23/2 291 SEALED RESPONSE re 283 Sealed Motion, Response to Dikeh Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 09/23/2020)

09/23/2 292 SEALED MOTION for Bail Application of Zaid Shaher Mohammad al-Araj by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 09/23/2020)

09/24/2 293 REPLY to Response re 237 MOTION for Inclusion of Travis Symboluk in the

020

Habeas Litigation Group filed by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/24/2020)

09/24/2 294 REPLY to Response re 233 MOTION for Inclusion of Andrei Skripkov in the

020

Habeas Litigation Group filed by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/24/2020)

09/24/2 295 SEALED REPLY to Response re 283 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/24/2020)

09/24/2 296 MOTION for Leave to File Reply Brief in Further Support of Class Member

020

Gisli Gislason's Motion for Inclusion in the Habeas Litigation Group by Qaid

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Exhibit A-Reply Brief in Further Support of Class Member

Gisli Gislason's Motion for Inclusiong in the Habeas Litigation Group,

# 2 Index of Exhibits, # 3 Exhibit 1-Supplemental Declaration of Dr. Charlotte

Roy, MD, # 4 Exhibit 2-Excerpts of Gisli "Thor" Gislason's Medical Records,

# 5 Exhibit A-Dr. Charlotte Roy, MD Exam Records) (Rhee, Jeannie) (Entered:

09/24/2020)

09/24/2 297 SEALED EXHIBIT 1-Supplemental Declaration of Dr. Charlotte Roy.

020

Md re 296 MOTION for Leave to File Reply Brief in Further Support of Class

Member Gisli Gislason's Motion for Inclusion in the Habeas Litigation

Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez,

Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez

Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa

Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 09/24/2020)

09/24/2 298 SEALED EXHIBIT 2-Excerpts of Gisli "Thor" Gislason's Medical

020

Records re 296 MOTION for Leave to File Reply Brief in Further Support of

Class Member Gisli Gislason's Motion for Inclusion in the Habeas Litigation

Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 09/24/2020)

09/25/2 299 STIPULATED ORDER Regarding Provision of Class Member Information,

020

Signed by District Judge Judith E. Levy. (WBar) (Entered: 09/25/2020)

09/25/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 9/25/2020 (Court Reporter: Sheri Ward) (WBar) (Entered: 09/25/2020)

09/28/2 300 FIFTH ORDER re 283 Sealed Motion. Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 09/28/2020)

09/28/2 301 SEALED RESPONSE re 292 Sealed Motion, Response to al_Araj Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 09/28/2020)

09/28/2 302 SEALED MOTION For Bail Application of Oliver Awshana by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 09/28/2020)

09/30/2 303 SEALED REPLY to Response re 292 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

09/30/2020)

10/01/2 304 SEALED RESPONSE re 302 Sealed Motion, Response to Awshana Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/01/2020)

10/02/2 305 SIXTH ORDER on Bail re 292 . Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 10/02/2020)

10/02/2 306 NOTICE OF APPEAL by MATTHEW T. ALBENCE, Rebecca Adducci,

020

WILLIAM P BARR, ICE/DHS, Chad F. Wolf re 300 Order on Sealed

Motion, 305 Order on Sealed Motion, 242 Order on Sealed

Motion,,,, 168 Order, 210 Order on Sealed Motion,,,, 212 Order on Motion to

Amend/Correct. Fee Status: No Fee Paid. (Newby, Jennifer) (Entered:

10/02/2020)

10/02/2 307 Certificate of Service re 306 Notice of Appeal,. (DPer) (Entered: 10/02/2020) 020

10/02/2 308 NOTICE OF APPEAL by MATTHEW T. ALBENCE, Rebecca Adducci,

020

WILLIAM P BARR, ICE/DHS, Chad F. Wolf re 177 Order, 300 Order on

Sealed Motion, 305 Order on Sealed Motion, 242 Order on Sealed

Motion,,,, 168 Order, 210 Order on Sealed Motion,,,, 212 Order on Motion to

Amend/Correct. Fee Status: No Fee Paid. (Newby, Jennifer) (Entered:

10/02/2020)

10/02/2 309 Certificate of Service re 308 Notice of Appeal,. (DPer) (Entered: 10/02/2020) 020

10/02/2 310 SEALED Updated Notice of Undisputed Habeas Litigation Group Members by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Email from J. Newby on

August 30, 2020, # 3 Exhibit B - Email from J. Newby on September 14, 2020,

# 4 Exhibit C - Email from J. Newby on September 21, 2020, # 5 Exhibit D -

Email from J. Newby on September 29, 2020, # 6 Exhibit E - Email from J.

Newby on September 30, 2020) (Rhee, Jeannie) (Entered: 10/02/2020)

10/02/2 311 SEALED MOTION for Bail Application of Boss Ntungane by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/02/2020)

10/02/2 312 SEALED MOTION for Bail Application of Oscar Tejada by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/02/2020)

10/02/2 313 SEALED REPLY to Response re 302 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - November 20, 2019 Opinion and Order, # 3 Exhibit B

- July 10, 2019 Order) (Rhee, Jeannie) (Entered: 10/02/2020)

10/03/2 314 TRANSCRIPT of Status Conference held on 09/25/2020. (Court

020

Reporter/Transcriber: Sheri Ward, www.transcriptorders.com) (Number of

Pages: 52) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/26/2020. Redacted Transcript Deadline set for 11/3/2020. Release of Transcript Restriction set for 1/4/2021. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Ward, S) (Entered: 10/03/2020)

10/05/2 315 SEALED MOTION for Bail Application of Omar Garcia-Banos by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/05/2020)

10/05/2 316 SEALED MOTION for Bail Application of Francisco Fortin-Mayorga by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/05/2020)

10/06/2 317 SEALED MOTION For Bail Application of Felix Huesca Sosa by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/06/2020)

10/07/2 318 SEALED RESPONSE re 311 Sealed Motion, of Boss Ntungane by Rebecca

020

Adducci. (Attachments: # 1 Exhibit Photos, # 2 Exhibit Investigation Report)

(Newby, Jennifer) (Entered: 10/07/2020)

10/07/2 319 SEALED RESPONSE re 312 Sealed Motion, Response to Tejada Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/07/2020)

10/08/2 320 SEALED RESPONSE re 315 Sealed Motion, Response to Garcia-Banos Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/08/2020)

10/08/2 321 SEALED RESPONSE re 316 Sealed Motion, of Francisco Fortin-Mayorga by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 10/08/2020)

10/09/2 322 SEALED RESPONSE re 317 Sealed Motion, of Felix Huesca Sosa by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 10/09/2020)

10/09/2 323 MEMORANDUM re Jurisdiction Pending Appeal by Rebecca Adducci

020

(Newby, Jennifer) (Entered: 10/09/2020)

10/09/2 324 MEMORANDUM on Notice of Appeal by Qaid Alhalmi, Waad Barash, Tomas

020

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- October 7, 2020 Fraihat Order, # 3 Exhibit B - July 8, 2020 Hernandez Roman

Order) (Rhee, Jeannie) (Entered: 10/09/2020)

10/09/2 325 SEALED REPLY to Response re 312 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit A - Emails re Parole Transfer Request, # 3 Exhibit B - September

10, 2020 Miami Herald Article, # 4 Exhibit C - U.S Embassy in Peru Alert re

Extension of National Emergency, # 5 Exhibit D - CDC Travelers' Health,

COVID-19 in Peru) (Rhee, Jeannie) (Entered: 10/09/2020)

10/09/2 326 SEALED REPLY to Response re 311 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit A - Supplemental Declaration of Chance Nyinawamuntu,

# 3 Exhibit B - October 6, 2020 Buzzfeed News Article) (Rhee, Jeannie)

(Entered: 10/09/2020)

10/09/2 327 SEALED MOTION for Bail Application of Fawzi Zaya by Qaid Alhalmi,

020

Waad Barash, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda

Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska,

Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 10/09/2020)

10/09/2 328 SEALED REPLY to Response re 315 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 10/09/2020)

10/09/2 329 SEALED REPLY to Response re 316 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A - Supplemental Declaration of Sandi Carolina Carbajal Meza) (Rhee, Jeannie) (Entered: 10/09/2020)

10/13/2 330 SEVENTH ORDER on Bail 302 . Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 10/13/2020)

10/13/2 331 SEALED Supplement to Bail Application of Boss

020

Ntungane re 311 SEALED MOTION for Bail Application of Boss Ntungane by

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 10/13/2020)

10/13/2 332 SEALED REPLY to Response re 317 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

10/13/2020)

10/14/2 333 SEALED MOTION For Bail Application of Mohamad Murai by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/14/2020)

10/15/2 334 SEALED RESPONSE re 327 Sealed Motion, re Fawzi Zaya by Rebecca

020

Adducci. (Attachments: # 1 Exhibit Email) (Newby, Jennifer) (Entered:

10/15/2020)

10/16/2 335 SEALED MOTION For Bail Application of Alberto Bianchi by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/16/2020)

10/16/2 336 SEALED MOTION For Bail Application of Armando Lopez-Torres by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/16/2020)

10/19/2 337 SEALED RESPONSE re 333 Sealed Motion, of Mohamad Murai by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 10/19/2020)

10/19/2 338 SEALED REPLY to Response re 327 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A

- October 16, 2020 Email from J. Newby) (Rhee, Jeannie) (Entered:

10/19/2020)

10/21/2 339 Emergency MOTION for Order terminating bail for Nazario Pablo Pablo by

020

Rebecca Adducci. (Attachments: # 1 Exhibit Slater Declaration, # 2 Exhibit

OSUP) (Newby, Jennifer) (Entered: 10/21/2020)

10/21/2 340 SEALED RESPONSE re 335 Sealed Motion, of Alberto Bianchi by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 10/21/2020)

10/21/2 341 SEALED RESPONSE re 336 Sealed Motion, of Armando Lopez Torres by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 10/21/2020)

10/21/2 342 ORDER granting 339 Emergency Motion to Terminate Bail. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 10/21/2020)

10/21/2 343 SEALED REPLY to Response re 333 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

10/21/2020)

10/22/2 344 NOTICE of Withdrawal of Attorney Rosana Santana Moura Garbacik for on

020

behalf of Janet Malam. (Garbacik, Rosana) (Entered: 10/22/2020)

10/22/2 345 SEALED RESPONSE re 336 Sealed Motion, Supplemental Response re

020

Armando Lopez-Torres by Rebecca Adducci. (Newby, Jennifer) (Entered:

10/22/2020)

10/22/2 346 EIGHTH ORDER ON BAIL re 316 , 311 , 317 , 312 , 315 . Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 10/22/2020)

10/22/2 347 SEALED Notice of Withdrawal of Short-Form Bail

020

Applications re 336 SEALED MOTION For Bail Application of Armando

Lopez-Torres by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz,, 335 SEALED MOTION For Bail Application of

Alberto Bianchi by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lench by Qaid Alhalmi, Waad Barash, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 10/22/2020)

10/22/2 348 ORDER of Attorney Withdrawal. Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 10/22/2020)

10/23/2 349 NOTICE by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

020

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang of withdrawal of 237 MOTION for Inclusion of Travis Symboluk in the

Habeas Litigation Group . (Rhee, Jeannie) (Entered: 10/23/2020)

10/23/2 350 SEALED MOTION For Bail Application of Estanislao Pulido Chavez by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/23/2020)

10/25/2 351 NOTICE TO APPEAR BY VIDEO CONFERENCE: Emergency Hearing set

020

for 10/26/2020 03:30 PM before District Judge Judith E. Levy |Zoom

Webinar Information:

https://www.zoomgov.com/j/1603130631?pwd=cmE3U2tOUjY4bHg5TVUyR

HRtVTBFZz09 Passcode: 027323 Or iPhone one-tap : US:

+16692545252,,1603130631# or +16468287666,,1603130631#| (WBar)

(Entered: 10/25/2020)

10/26/2 352 NOTICE of Appearance by Rachel Fiorill on behalf of Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Leonard Baroi, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan

Guerrero Bernardez, Gan Jin, Lenche Krcoska, Julio Fernando Medina Euceda,

Tauqir Niazi, Isaac Orta Vieyra, Sergio Perez Pavon, Pedro Quijada, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj. (Fiorill, Rachel) (Entered: 10/26/2020)

10/26/2 353 SEALED MOTION for Bail Application of Abdelmohsin Osman by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/26/2020)

10/26/2 354 NOTICE by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

020

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang (Notice of Filing of Exhibits for October 26, 2020

Hearing) (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of

Oscar Xirum-Sanchez [Redacted], # 3 Exhibit B - Declaration of Robyn

Cincotta, # 4 Exhibit C - Declaration of J. Jesus Montoya Soto, # 5 Exhibit D -

Declaration of Denis Martinez Cordero, # 6 Exhibit E - Declaration of Rohit

Rajan, # 7 Exhibit F - Medical Records of Oscar Xirum-Sanchez [Filed Under

Seal], # 8 Exhibit G - Photos and Schematics of Calhoun [Filed Under Seal])

(Rhee, Jeannie) (Entered: 10/26/2020)

10/26/2 355 SEALED EXHIBIT A - Declaration of Oscar Xirum-Sanchez re 354 Notice

020

(Other),,, by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 10/26/2020)

10/26/2 356 SEALED EXHIBIT F - Medical Records of Oscar Xirum-

020

Sanchez re 354 Notice (Other),,, by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 10/26/2020)

10/26/2 357 SEALED EXHIBIT G - Photos and Schematics of Calhoun re 354 Notice

020

(Other),,, by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 10/26/2020)

10/26/2 358 SEALED Supplemental Briefing re 316 SEALED MOTION for Bail

020

Application of Francisco Fortin-Mayorga by Qaid Alhalmi, Waad Barash,

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda

Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Sant by Qaid Alhalmi,

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Attachments:

# 1 Exhibit to Supplemental Briefing) (Ngo, My Khanh) (Entered: 10/26/2020)

10/26/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Emergency Hearing held on 10/26/2020 (Court Reporter: Darlene May) (WBar) (Entered: 10/27/2020)

10/27/2 359 ORDER REQUIRING RESPONSE. Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 10/27/2020)

10/27/2 360 MEMORANDUM re 359 Order by Rebecca Adducci (Newby, Jennifer)

020

(Entered: 10/27/2020)

10/27/2 361 SEALED EXHIBIT re 360 Memorandum by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 10/27/2020)

10/27/2 362 SEALED MOTION for Bail Application of Joas Habimana by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/27/2020)

10/27/2 363 SEALED MOTION for Bail Application of Gong Yan Lee by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 10/27/2020)

10/27/2 364 SEALED MOTION for Bail Application of Jonathan Reyes-Saucedo by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/27/2020)

10/28/2 365 TRANSCRIPT of Emergency Motion held on October 26, 2020. (Court

020

Reporter: Darlene K. May) (Number of Pages: 104) The parties have 21 days to

file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/18/2020. Redacted Transcript Deadline set for 11/30/2020. Release of Transcript Restriction set for 1/26/2021. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (May, D) (Entered: 10/28/2020)

10/28/2 366 [DUPLICATE ENTRY - SEE #365] TRANSCRIPT of Emergency Motion held

020

on October 26, 2020. (Court Reporter: Darlene K. May) (Number of Pages:

104) The parties have 21 days to file with the court and Court Reporter a

Redaction Request of this transcript. If no request is filed, the transcript may be

made remotely electronically available to the public without redaction after 90

days. Redaction Request due 11/18/2020. Redacted Transcript Deadline set for

11/30/2020. Release of Transcript Restriction set for 1/26/2021. Transcript may

be viewed at the court public terminal or purchased through the Court Reporter

before the deadline for Release of Transcript Restriction. After that date, the

transcript is publicly available. (May, D) Modified on 10/28/2020 (JPur).

(Entered: 10/28/2020)

10/28/2 367 [DUPLICATE ENTRY - SEE #365] TRANSCRIPT of Emergency Motion held

020

on October 26, 2020. (Court Reporter: Darlene K. May) (Number of Pages:

104) The parties have 21 days to file with the court and Court Reporter a

Redaction Request of this transcript. If no request is filed, the transcript may be

made remotely electronically available to the public without redaction after 90

days. Redaction Request due 11/18/2020. Redacted Transcript Deadline set for

11/30/2020. Release of Transcript Restriction set for 1/26/2021. Transcript may

be viewed at the court public terminal or purchased through the Court Reporter

before the deadline for Release of Transcript Restriction. After that date, the

transcript is publicly available. (May, D) Modified on 10/28/2020 (JPur).

(Entered: 10/28/2020)

10/28/2 368 [DUPLICATE ENTRY - SEE #365] TRANSCRIPT of Emergency Motion held

020

on October 26, 2020. (Court Reporter: Darlene K. May) (Number of Pages:

104) The parties have 21 days to file with the court and Court Reporter a

Redaction Request of this transcript. If no request is filed, the transcript may be

made remotely electronically available to the public without redaction after 90

days. Redaction Request due 11/18/2020. Redacted Transcript Deadline set for

11/30/2020. Release of Transcript Restriction set for 1/26/2021. Transcript may

be viewed at the court public terminal or purchased through the Court Reporter

before the deadline for Release of Transcript Restriction. After that date, the

transcript is publicly available. (May, D) Modified on 10/28/2020 (JPur).

(Entered: 10/28/2020)

10/28/2 369 SEALED Supplement to Bail Application for Gong Yan

020

Lee re 363 SEALED MOTION for Bail Application of Gong Yan Lee by Qaid

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche K by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 10/28/2020)

10/28/2 370 SEALED RESPONSE re 350 Sealed Motion, of Estanislao Pulido Chavez by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 10/28/2020)

10/28/2 371 SEALED MOTION for Bail Application for Eddys Alejandro Rosello-

020

Carrazana by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 10/28/2020)

10/28/2 372 SEALED MOTION for Bail Application of Karar Munir Al-Sultan by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/28/2020)

10/28/2 373 MOTION for Emergency Relief to Respond to COVID-19 Outbreak by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Index of Exhibits, # 2 Exhibit 1: Conceded Habeas Litigation

Group Members, # 3 Exhibit 2: Habeas Litigation Group Member Descriptions,

# 4 Exhibit 3: Unconceded Habeas Litigation Group Members, # 5 Exhibit 4:

[Intentionally Left Blank], # 6 Exhibit 5: Expert Declarations for Unconceded

Habeas Litigation Group Members, # 7 Exhibit 6: Timeline of Outbreak,

# 8 Exhibit 7: Chart of Pods Where There Has Been Exposure, # 9 Exhibit 8:

Declaration of Dr. Homer Venters, # 10 Exhibit 9: Declaration of Oscar Xirum-

Sanchez, # 11 Exhibit 10: First Declaration of Robyn Cincotta, # 12 Exhibit 11:

Second Declaration of Robyn Cincotta, # 13 Exhibit 12: Declaration of Jesus

Montoya Soto, # 14 Exhibit 13: Declaration of Denis Martinez Cordero,

# 15 Exhibit 14: Declaration of Juan Rincon, # 16 Exhibit 15: Declaration of

Suzan Gabarra, # 17 Exhibit 16: Declaration of Maria E. Daniel, # 18 Exhibit

17: Declaration of Jonah Hahn, # 19 Exhibit 18: Declaration of Belinda M.

Orozco, # 20 Exhibit 19: Declaration of Shanta Driver, # 21 Exhibit 20:

Declaration of Rohit Rajan, # 22 Exhibit 21: Declaration of Rose Dikeh,

# 23 Exhibit 22: First Declaration of Ruby Robinson, # 24 Exhibit 23: Second Declaration of Ruby Robinson, # 25 Exhibit 24: Declaration of Nazariy Kmet, # 26 Exhibit 25: Declaration of Daniel Martinez-Saavedra, # 27 Exhibit 26: October 23-28 Emails with the Court, # 28 Exhibit 27: October 22 Email from J. Newby, # 29 Exhibit 28: Declaration of John Hilt, # 30 Exhibit 29: May 1, 2020 Order in Rodriguez Alcantara v. Archambeault, # 31 Exhibit 30: August 6, 2020 Order in Zepeda Rivas v. Jennings, # 32 Exhibit 31: September 29, 2020 Order in Hernandez Roman v. Wolf, # 33 Exhibit 32: October 15, 2020 Order in Hernandez Roman v. Wolf, # 34 Exhibit 33: April 30, 2020 Order in Rodriguez Alcantara v. Archambeault, # 35 Exhibit 34: August 11, 2020 Order in Santos Garcia v. Wolf) (Rhee, Jeannie) (Entered: 10/28/2020)

10/29/2 374 SEALED EXHIBIT (Exhibit 1: Conceded Habeas Litigation Group Members,

020

Exhibit 2: Habeas Litigation Group Member Descriptions, Exhibit 3:

Unconceded Habeas Litigation Group Members, Exhibit 5: Expert

Declarations for Unconceded Habeas Litigation Group Members, Exhibit 6:

Timeline of Outbreak, Exhibit 9: Declaration of Oscar Xirum-Sanchez, Exhibit

15: Declaration of Suzan Gabarra, Exhibit 16: Declaration of Maria E. Daniel,

Exhibit 19: Declaration of Shanta Driver, Exhibit 23: Second Declaration of

Ruby Robinson, Exhibit 26: October 23-28 Emails with the Court, and Exhibit

27: October 22 Email from J. Newby re 373 MOTION for Emergency Relief to

Respond to COVID-19 Outbreak by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit 2: Habeas Litigation

Group Member Descriptions, # 2 Exhibit 3: Unconceded Habeas Litigation

Group Members, # 3 Exhibit 5: Expert Declarations for Unconceded Habeas

Litigation Group Members, # 4 Exhibit 6: Timeline of Outbreak, # 5 Exhibit 9:

Declaration of Oscar Xirum-Sanchez, # 6 Exhibit 15: Declaration of Suzan

Gabarra, # 7 Exhibit 16: Declaration of Maria E. Daniel, # 8 Exhibit 19:

Declaration of Shanta Driver, # 9 Exhibit 23: Second Declaration of Ruby

Robinson, # 10 Exhibit 26: October 23-28 Emails with the Court, # 11 Exhibit

27: October 22 Email from J. Newby) (Rhee, Jeannie) (Entered: 10/29/2020)

10/29/2 375 SEALED REPLY to Response re 353 Sealed Motion, Response to Osman Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/29/2020)

10/29/2 376 SEALED MOTION For Bail Application of Jesus Montoya Soto by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 10/29/2020)

10/30/2 377 SEALED RESPONSE re 363 Sealed Motion, Response to Lee Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/30/2020)

10/30/2 378 SEALED RESPONSE re 362 Sealed Motion, Response to Habimama Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/30/2020)

10/30/2 379 SEALED RESPONSE re 364 Sealed Motion, Response to Reyes Saucedo Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 10/30/2020)

10/30/2 380 SEALED REPLY to Response re 350 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

10/30/2020)

10/31/2 381 RESPONSE to 373 MOTION for Emergency Relief to Respond to COVID-19

020

Outbreak filed by Rebecca Adducci. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit Hazel Deposition, # 3 Exhibit Calhoun Memos, # 4 Exhibit Posted

COVID signage, # 5 Exhibit Sample discipline, # 6 Exhibit ICE PRR 5.0,

# 7 Exhibit Whalen Declaration, # 8 Exhibit Jacobs Declaration, # 9 Exhibit

Housing unit supply photos, # 10 Exhibit Alvedy Declaration) (Newby,

Jennifer) (Entered: 10/31/2020)

10/31/2 382 SEALED EXHIBIT re 381 Response to Motion, by Rebecca Adducci.

020

(Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Newby, Jennifer) (Entered:

10/31/2020)

11/01/2 383 MOTION for Leave to file Reply Brief in Further Support of Petitioners-

020

Plaintiffs' Motion for Emergency Relief to Respond to COVID-19 Outbreak by

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Exhibit A - Reply Brief on Motion for Emergency Relief -

REDACTED) (Rhee, Jeannie) (Entered: 11/01/2020)

11/01/2 384 SEALED EXHIBIT (Reply Brief on Motion for Emergency Relief) by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 11/01/2020)

11/02/2 385 SEALED RESPONSE re 372 Sealed Motion, Response to Al Sultan Bail

020

Application by Rebecca Adducci. (Darling, Bradley) (Entered: 11/02/2020)

11/02/2 386 SEALED RESPONSE re 371 Sealed Motion, Response to Rosello Carranza

020

Bail Application by Rebecca Adducci. (Darling, Bradley) (Entered: 11/02/2020)

11/02/2 387 SEALED REPLY to Response re 363 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - November 2 Emails from J. Newby, # 3 Exhibit B -

Letter from Gong Lee) (Rhee, Jeannie) (Entered: 11/02/2020)

11/02/2 388 ORDER REGARDING 373 MOTION for Emergency Relief to Respond to

020

COVID-19 Outbreak. Signed by District Judge Judith E. Levy. (WBar)

(Entered: 11/02/2020)

11/02/2 389 ORDER granting 383 Motion for leave to file reply brief. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 11/02/2020)

11/02/2 390 SEALED REPLY to Response re 353 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

11/02/2020)

11/02/2 391 SEALED REPLY to Response re 364 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

11/02/2020)

11/02/2 392 SEALED REPLY to Response re 362 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A

- IJ Decision re Habimana) (Rhee, Jeannie) (Entered: 11/02/2020)

11/03/2 393 SEALED RESPONSE re 376 Sealed Motion, re Jesus Montoya Soto by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 11/03/2020)

11/04/2 394 SEALED REPLY to Response re 371 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A) (Rhee, Jeannie) (Entered: 11/04/2020)

11/04/2 395 SEALED REPLY to Response re 372 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

11/04/2020)

11/05/2 396 MOTION for Extension of Time to File Response/Reply / Motion for Extension

020

of Time to File Reply Brief in Further Support of Plaintiffs' Motion for

Emergency Relief to Respond to Covid-19 Outbreak by Qaid Alhalmi, Waad

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

11/05/2020)

11/05/2 020

TEXT-ONLY ORDER Granting 396 MOTION for Extension of Time. Plaintiffs supplemental brief will now be due by 11:59 p.m. on Friday, November 6, 2020 and Defendants brief is now due by 11:59 p.m. on Tuesday, November 10, 2020. Signed by District Judge Judith E. Levy. (WBar) (Entered: 11/05/2020)

11/05/2 397 SEALED REPLY to Response re 376 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A: Jail Program Status, # 3 Exhibit B: Form I-693) (Rhee,

Jeannie) (Entered: 11/05/2020)

11/06/2 398 SEALED Second Updated Notice of Undisputed Habeas Litigation Group

020

Members by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Nov. 4, 2020 Email

from J. Newby, # 3 Exhibit B: Sept. 2020 Correspondence with J. Newby,

# 4 Exhibit C: Nov. 4, 2020 Chronic Care Report) (Rhee, Jeannie) (Entered:

11/06/2020)

11/06/2 399 MOTION for Leave to File Excess Pages by Qaid Alhalmi, Waad Barash,

020

Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda

Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska,

Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/06/2020)

11/06/2 400 REPLY to Response re 383 MOTION for Leave to file Reply Brief in Further

020

Support of Petitioners-Plaintiffs' Motion for Emergency Relief to Respond to

COVID-19 Outbreak filed by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- [Filed Under Seal], # 3 Exhibit B - [Filed Under Seal], # 4 Exhibit C -

Supplemental Declaration of Dr. Homer Venters, # 5 Exhibit D - Declaration of

Francisco Fortin- Mayorga [Redacted], # 6 Exhibit E - Declaration of Kai W.

De Graaf [Redacted], # 7 Exhibit F - Declaration of Estanislao Pulido Chavez,

# 8 Exhibit G - Declaration of Baseem Maleki, # 9 Exhibit H - Declaration of

Rose Dikeh, # 10 Exhibit I - Declaration of Denis Martinez Cordero,

# 11 Exhibit J - Declaration of Robyn M. Cincotta [Redacted], # 12 Exhibit K -

Declaration of Qiwei Li [Redacted], # 13 Exhibit L - Declaration of Mohamad

Ahmad Murai, # 14 Exhibit M - Declaration of Jonah Hahn, # 15 Exhibit N -

Declaration of J. Jesus Montoya Soto, # 16 Exhibit O - [Filed Under Seal],

# 17 Exhibit P - [Filed Under Seal], # 18 Exhibit Q - [Filed Under Seal],

# 19 Exhibit R - [Filed Under Seal], # 20 Exhibit S - [Filed Under Seal]) (Rhee,

Jeannie) (Entered: 11/06/2020)

11/06/2 401 SEALED EXHIBIT (Exhibit A: Chart of Medically Vulnerable Detainees

020

Identified by Class Counsel, Exhibit B: Undisputed Habeas Group Member

Description for Gisli Gislason, Exhibit D: Declaration of Francisco Fortin-

Mayorga, Exhibit E: Declaration of Kai de Graff, Exhibit J: Declaration of

Robyn M. Cincotta, Exhibit K: Declaration of Qiwei Li, Exhibit O: Emails

Between M. Aukerman and J. Newby, Exhibit P: Emails Between M. Aukerman

and J. Newby (September 11-21 2020), Exhibit Q: Emails Between D. Gardner

and J. Newby (October 8-16, 2020), Exhibit R: Emails Between M. Aukerman

and J. Newby (October 16-22, 2020), Exhibit S: Email from J. Newby to M.

Aukerman re 400 Reply to Response to Motion,,,,,, by Qaid Alhalmi, Waad

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit B

- Undisputed Habeas Group Member Description for Gisli Gislason, # 2 Exhibit

D - Declaration of Francisco Fortin-Mayorga, # 3 Exhibit E - Declaration of

Kai de Graff, # 4 Exhibit J - Declaration of Robyn M. Cincotta, # 5 Exhibit K -

Declaration of Qiwei Li, # 6 Exhibit O - Emails Between M. Aukerman and J. Newby (November 2, 2020, # 7 Exhibit P - Emails Between M. Aukerman and J. Newby (September 11-21 2020), # 8 Exhibit Q - Emails Between D. Gardner and J. Newby (October 8-16, 2020), # 9 Exhibit R - Emails Between M. Aukerman and J. Newby (October 16-22, 2020), # 10 Exhibit S - Email from J. Newby to M. Aukerman) (Rhee, Jeannie) (Entered: 11/06/2020)

11/09/2 020

TEXT-ONLY ORDER Granting 399 MOTION for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (WBar) (Entered: 11/09/2020)

11/09/2 402 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set

020

for 11/12/2020 03:00 PM before District Judge Judith E. Levy (WBar)

(Entered: 11/09/2020)

11/10/2 403 SUPPLEMENTAL BRIEF re 373 MOTION for Emergency Relief to Respond

020

to COVID-19 Outbreak filed by Rebecca Adducci. (Attachments: # 1 Exhibit

Hazel Deposition, # 2 Exhibit Calhoun Population, # 3 Exhibit Article)

(Newby, Jennifer) (Entered: 11/10/2020)

11/10/2 404 SEALED EXHIBIT re 403 Supplemental Brief, by Rebecca Adducci. (Newby,

020

Jennifer) (Entered: 11/10/2020)

11/10/2 405 SEALED MOTION for Bail Application of Noe Chaparro-Alcantara by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 11/10/2020)

11/11/2 406 MOTION for Leave to File Reply Brief in Further Support of Petitioners-

020

Plaintiffs' Supplemental Brief by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A - Proposed Reply)

(Rhee, Jeannie) (Entered: 11/11/2020)

11/11/2 407 EXHIBIT A-Supplemental Declaration of Basseem Maleki re 406 MOTION for

020

Leave to File Reply Brief in Further Support of Petitioners-Plaintiffs'

Supplemental Brief by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang (Rhee, Jeannie) (Entered: 11/11/2020)

11/12/2 408 MOTION to Submit Additional Evidence re 381 Response to Motion, by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 11/12/2020)

11/12/2 409 SEALED EXHIBIT re 408 MOTION to Submit Additional Evidence

020

re 381 Response to Motion, by Rebecca Adducci. (Newby, Jennifer) (Entered:

11/12/2020)

11/12/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 11/12/2020 (Court Reporter: None Present, Not on the Record) (WBar) (Entered: 11/12/2020)

11/13/2 410 SEALED RESPONSE re 405 Sealed Motion, re Noe Chaparro Alcantara by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 11/13/2020)

11/13/2 411 ORDER granting 296 Motion for Leave to File Reply Brief. Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 11/13/2020)

11/13/2 412 SEALED Notice of Withdrawal of Short-Form Bail

020

Application re 376 SEALED MOTION For Bail Application of Jesus Montoya

Soto by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez,

Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

Jose Gomez Santiz, Le by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/13/2020)

11/17/2 413 SEALED REPLY to Response re 405 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A: Declaration of Noe Chaparro-Alcantara, # 3 Exhibit B:

Supplemental Declaration of Venancio Chaparro-Alcantara, # 4 Exhibit C:

Second Supplemental Declaration of J. Jesus Montoya Soto) (Rhee, Jeannie)

(Entered: 11/17/2020)

11/18/2 414 ORDER Granting 255 MOTION for Inclusion of Gisli Gislason in the Habeas

020

Litigation Group; and Requiring Supplemental Briefing re 233 MOTION for

Inclusion of Andrei Skripkov in the Habeas Litigation Group. Supplemental

Documentation due by 11/20/2020. Signed by District Judge Judith E. Levy.

(WBar) (Entered: 11/18/2020)

11/19/2 415 SEALED Supplemental Documentation of BP Readings re 233 MOTION for

020

Inclusion of Andrei Skripkov in the Habeas Litigation Group by Rebecca

Adducci. (Newby, Jennifer) (Entered: 11/19/2020)

11/19/2 416 SEALED MOTION For Bail Application and Notice of Custodian Information

020

For Qaid Alhalmi, Waad Barash, Tomas Cardona Ramirez, Lenche Krcoska,

Yohandry Ley Santana, Janet Malam, Sergio Perez Pavon, Damary Rodriguez

Salabarria, Emanuel Rosales Borboa, and Amer Toma by Qaid Alhalmi, Waad

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/19/2020)

11/20/2 417 MOTION for Leave to File Supplemental Statement by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit 1 - Proposed Supplemental Statement, # 3 Exhibit A to

Proposed Supplemental Statement - Email from J. Newby to M. Aukerman

(Nov. 18, 2020) [Redacted]) (Rhee, Jeannie) (Entered: 11/20/2020)

11/20/2 418 SEALED EXHIBIT A to Proposed Supplemental Statement - Email from J.

020

Newby to M. Aukerman (Nov. 18, 2020) re 417 MOTION for Leave to

File Supplemental Statement by Qaid Alhalmi, Waad Barash, Sergio Brito,

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/20/2020)

11/20/2 419 JOINT STATUS REPORT by Qaid Alhalmi, Waad Barash, Sergio Brito,

020

Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose

Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez

Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- CV of Dr. Robert Greifinger, # 3 Exhibit B - List of Previous Expert

Testimony of Dr. Robert Greifinger, # 4 Exhibit C - CV of Dr. Homer Venters)

(Rhee, Jeannie) (Entered: 11/20/2020)

11/20/2 420 SEALED MOTION for Bail Application of Oscar Xirum-Sanchez by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 11/20/2020)

11/20/2 421 SEALED MOTION for Bail Application of Andres Tomas Alvarez

020

Hernandez by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/20/2020)

11/23/2 422 SEALED Notice of Withdrawal of Short-Form Bail Application of Gong

020

Lee re 363 SEALED MOTION for Bail Application of Gong Yan Lee by Qaid

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche K by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 11/23/2020)

11/24/2 020

TEXT-ONLY ORDER: Parties have until November 25, 2020 to submit individual or joint proposals for expert inspection. Signed by District Judge Judith E. Levy. (WBar) (Entered: 11/24/2020)

11/24/2 423 SEALED RESPONSE re 421 Sealed Motion, re Andres Alvarez Hernandez by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 11/24/2020)

11/24/2 424 SEALED RESPONSE re 420 Sealed Motion, re Oscar Xirum Sanchez by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 11/24/2020)

11/25/2 425 MOTION for Extension of Time to File Response/Reply as

020

to 420 SEALED MOTION for Bail Application of Oscar Xirum-Sanchez by

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, L, 421 SEALED MOTION for Bail Application of Andres Tomas

Alvarez Hernandez by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gome by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 11/25/2020)

11/25/2 426 Plaintiffs' Proposal for Expert Inspection REPORT by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - CV of Cynthia Kienlen, # 3 Exhibit B - Proposed

Order for Rule 706 Inspection by Dr. Robert B. Greifinger, # 4 Exhibit C -

Proposed Order for Rule 706 Inspection by Plaintiffs' Expert Dr. Homer

Venters) (Rhee, Jeannie) (Entered: 11/25/2020)

11/25/2 427 Defendants' Proposal re Inspection REPORT by Rebecca Adducci (Newby,

020

Jennifer) (Entered: 11/25/2020)

11/25/2 428 SEALED MOTION for Bail Application of Ariel Pineda-Rivera by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 11/25/2020)

11/30/2 429 SEALED RESPONSE re 416 Sealed Motion,, re Preliminary Injunction

020

plaintiffs by Rebecca Adducci. (Newby, Jennifer) (Entered: 11/30/2020)

11/30/2 430 NINTH ORDER ON BAIL

020

APPLICATIONS 372 , 316 , 371 , 353 , 362 , 350 , 364 , 405 , 333 , 327 .

Signed by District Judge Judith E. Levy. (WBar) (Entered: 11/30/2020)

11/30/2 431 ORDER denying 406 Motion for Leave. Signed by District Judge Judith E.

020

Levy. (WBar) (Entered: 11/30/2020)

11/30/2 432 ORDER granting 417 Motion for Leave. Signed by District Judge Judith E.

020

Levy. (WBar) (Entered: 11/30/2020)

11/30/2 433 SEALED REPLY to Response re 421 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Supplemental Declaration of Nuria Acosta, # 3 Exhibit

B - Nov. 30, 2020 Email from J. Newby) (Rhee, Jeannie) (Entered: 11/30/2020)

11/30/2 434 SEALED REPLY to Response re 420 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A

- Supplemental Declaration of Oscar Xirum Sanchez) (Rhee, Jeannie) (Entered:

11/30/2020)

12/01/2 435 Emergency MOTION for Order to Re-detain Tomas Cardona Ramirez by

020

Rebecca Adducci. (Attachments: # 1 Exhibit Brown Declaration) (Newby,

Jennifer) (Entered: 12/01/2020)

12/01/2 436 SEALED RESPONSE re 428 Sealed Motion, re Ariel Pineda Rivera by

020

Rebeccaa Adducci. (Newby, Jennifer) (Entered: 12/01/2020)

12/01/2 437 ORDER granting 435 Motion for Order to Re-Detain Tomas Cardona Ramirez.

020

Signed by District Judge Judith E. Levy. (WBar) (Entered: 12/01/2020)

12/01/2 438 ORDER unsealing 210 , 242 , 276 and 290 Orders. Signed by District Judge

020

Judith E. Levy. (DPer) (Entered: 12/01/2020)

12/03/2 439 ORDER FOR IN-PERSON FACILITY INSPECTION BY PLAINTIFFS

020

EXPERT. Signed by District Judge Judith E. Levy. (WBar) (Entered:

12/03/2020)

12/03/2 440 ORDER granting 233 Motion for Inclusion of Skripkov in the Habeas

020

Litigation Group. Signed by District Judge Judith E. Levy. (WBar) (Entered:

12/03/2020)

12/03/2 441 SEALED REPLY to Response re 428 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Declaration of Ariel Pineda-Rivera, # 3 Exhibit B -

Declaration of Osmara Fernandez) (Rhee, Jeannie) (Entered: 12/03/2020)

12/03/2 442 SEALED Updated Notice of Undisputed Habeas Litigation Group Members by

020

Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan

Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang.

(Attachments: # 1 Exhibit A - Emails from J. Newby) (Rhee, Jeannie) (Entered:

12/03/2020)

12/04/2 443 NOTICE TO APPEAR BY VIDEO CONFERENCE: Individual Bail

020

Hearings for Abdelmohsin Osman and Joas Habimana set for 12/16/2020

10:30 AM before District Judge Judith E. Levy |Zoom Webinar Information:

https://www.zoomgov.com/j/1619988264?pwd=a2pGZ1VRNHBUbDQ5dEdL

OG9VNHRzUT09 Passcode: 967875 Or iPhone one-tap : US:

+16692545252,,1619988264# or +16468287666,,1619988264#| (WBar)

(Entered: 12/04/2020)

12/04/2 444 NOTICE by Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez,

020

Gan Jin, Tauqir Niazi of withdrawal of 193 MOTION to Strike 190 Sealed

Document - Other (Motion to Strike Privileged Attorney-Client

Communications and for Protection of Privileged Communications) . (Rhee,

Jeannie) (Entered: 12/04/2020)

12/04/2 445 ORDER granting 408 Motion for leave to submit additional evidence. Signed

020

by District Judge Judith E. Levy. (WBar) (Entered: 12/04/2020)

12/04/2 446 ORDER granting 425 Motion for Extension of Time. Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 12/04/2020)

12/04/2 447 SEALED MOTION for Bail Application of Gisli Gislason by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 12/04/2020)

12/07/2 448 SEALED Supplement to Short Form Bail Application of Andres Tomas

020

Alvarez Hernandez by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A - Alvarez Hernandez

Order) (Rhee, Jeannie) (Entered: 12/07/2020)

12/07/2 449 SEALED MOTION for Bail Application of Assad Lone by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 12/07/2020)

12/07/2 450 SEALED REPLY to Response re 416 Sealed Motion,, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Index of

Exhibits, # 2 Exhibit A - Alhalmi Declaration, # 3 Exhibit B - Saleh

Declaration, # 4 Exhibit C - Barash Declaration, # 5 Exhibit D - Perez Pavon

Declaration) (Rhee, Jeannie) (Entered: 12/07/2020)

12/09/2 451 SEALED RESPONSE re 447 Sealed Motion, re Gisli Gislason by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 12/09/2020)

12/10/2 452 SEALED RESPONSE re 449 Sealed Motion, re Assad Lone by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 12/10/2020)

12/10/2 453 NOTICE OF APPEAL by Rebecca Adducci re 330 Order on Sealed

020

Motion, 430 Order, 346 Order. Fee Status: No Fee Paid. (Newby, Jennifer)

(Entered: 12/10/2020)

12/10/2 454 Certificate of Service re 453 Notice of Appeal. (NAhm) (Entered: 12/10/2020) 020

12/10/2 455 TENTH ORDER ON BAIL 416 . Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 12/10/2020)

12/11/2 456 ELEVENTH ORDER ON BAIL 420 , 421 , 428 . Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 12/11/2020)

12/11/2 457 SEALED Notice of Withdrawal of Short-Form Bail Application of Joas

020

Habimana re 362 SEALED MOTION for Bail Application of Joas

Habimana by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche by Qaid Alhalmi, Waad Barash, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered: 12/11/2020)

12/11/2 458 SEALED MOTION for Bail Application of Andrei Skripkov by Qaid Alhalmi,

020

Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro,

Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz,

Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel

Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma,

Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie)

(Entered: 12/11/2020)

12/11/2 459 SEALED MOTION for Extension of Time to File Reply

020

re 447 SEALED MOTION for Bail Application of Gisli Gislason by Qaid

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Rhee, Jeannie) (Entered: 12/11/2020)

12/14/2 460 SEALED REPLY to Response re 449 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments: # 1 Exhibit A

- Supplemental Declaration of Assad Lone) (Rhee, Jeannie) (Entered:

12/14/2020)

12/15/2 461 SEALED MOTION for Bail Application of Manuel Castillo-Torres by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 12/15/2020)

12/15/2 462 ORDER granting 459 Motion for Extension of Time. Signed by District Judge

020

Judith E. Levy. (WBar) (Entered: 12/15/2020)

12/15/2 463 SEALED MOTION for Bail Application of Nicholas Yearsley by Qaid

020

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 12/15/2020)

12/16/2 020

Minute Entry for proceedings before District Judge Judith E. Levy: Individual Bail Hearing for Abdelmohsin Osman held on 12/16/2020; Disposition: Granted (Court Reporter: Darlene May)(Interpreter: Rania Hijazeen) (WBar) (Entered: 12/16/2020)

12/16/2 464 SEALED RESPONSE re 458 Sealed Motion, re Andrei Skripkov by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 12/16/2020)

12/17/2 465 TWELFTH ORDER ON BAIL 353 . Signed by District Judge Judith E. Levy.

020

(WBar) (Entered: 12/17/2020)

12/17/2 466 SEALED RESPONSE re 461 Sealed Motion, re Manuel Castillo-Torres by

020

Rebecca Adducci. (Newby, Jennifer) (Entered: 12/17/2020)

12/18/2 467 SEALED RESPONSE re 463 Sealed Motion, re Nicholas Yearsley by Rebecca

020

Adducci. (Newby, Jennifer) (Entered: 12/18/2020)

12/18/2 468 THIRTEENTH ORDER ON BAIL 449 . Signed by District Judge Judith E.

020

Levy. (WBar) (Entered: 12/18/2020)

12/18/2 469 SEALED REPLY to Response re 458 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Attachments:

# 1 Declaration of Monica Andrade) (Rhee, Jeannie) (Entered: 12/18/2020)

12/18/2 470 SEALED REPLY to Response re 461 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

12/18/2020)

12/21/2 471 SEALED REPLY to Response re 463 Sealed Motion, by Qaid Alhalmi, Waad

020

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang. (Rhee, Jeannie) (Entered:

12/21/2020)

12/22/2 472 MOTION for Inclusion of Guo Yan Lin Castro in the Habeas Litigation

020

Group [Redacted] by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon,

Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley

Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman, William

Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A

- Statement of Guo Yan Castro [Filed Under Seal], # 3 Exhibit B - Declaration

of Cara Taubman [Redacted], # 4 Exhibit C - Chronic Care Report [Filed Under

Seal], # 5 Exhibit D - Medical Record [Filed Under Seal], # 6 Exhibit E -

Declaration of Kai W. De Graaf [Redacted], # 7 Exhibit F - Medical Request

[Filed Under Seal]) (Rhee, Jeannie) (Entered: 12/22/2020)

12/22/2 473 SEALED MOTION for Inclusion of Guo Yan Lin Castro in the Habeas

020

Litigation Group re 472 MOTION for Inclusion of Guo Yan Lin Castro in the

Habeas Litigation Group [Redacted] by Qaid Alhalmi, Waad Barash, Sergio

Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar,

Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang. (Attachments: # 1 Index of Exhibits,

# 2 Exhibit A - Statement of Guo Yan Castro, # 3 Exhibit B - Declaration of

Cara Taubman, # 4 Exhibit C - Chronic Care Report, # 5 Exhibit D - Medical

Record, # 6 Exhibit E - Declaration of Kai W. De Graaf, # 7 Exhibit F -

Medical Request) (Rhee, Jeannie) (Entered: 12/22/2020)

12/22/2 474 MOTION for Withdrawal of Attorney Breanne J. Palmer by Qaid Alhalmi,

020

Ahammad Ali, Baldemar Barajas Santoyo, Waad Barash, Sergio Brito, Tomas

Cardona Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio

Garcia Toledo, Ziggy Marcus Garvie, Jose Gomez Santiz, Juan Guerrero

Bernardez, Gan Jin, Lenche Krcoska, Tauqir Niazi, Isaac Orta Vieyra, Sergio

Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa,

Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,

William Whernman, Min Dan Zhang, Zaid Shaher Mohammad al-Araj.

(Palmer, Breanne) (Entered: 12/22/2020)

12/23/2 475 FOURTEENTH ORDER ON BAIL 458 , 461 , and 463 . Signed by District

020

Judge Judith E. Levy. (WBar) (Entered: 12/23/2020)

12/23/2 020

TEXT-ONLY ORDER Granting 474 MOTION for Withdrawal of Attorney Breanne J. Palmer. Signed by District Judge Judith E. Levy. (WBar) (Entered: 12/23/2020)

12/23/2 476 STIPULATION AND ORDER REGARDING FACILITY INSPECTION AND

020

EXPERT REPORTS, Signed by District Judge Judith E. Levy. (WBar)

(Entered: 12/23/2020)

12/23/2 477 SEALED Memo re Eleventh Bail Order re 456 Order on Sealed Motion,, by

020

Rebecca Adducci. (Attachments: # 1 Exhibit Detained positives, # 2 Exhibit

Staff positives, # 3 Exhibit Bookings, # 4 Exhibit Declaration of Capt Holly Thomas) (Newby, Jennifer) (Entered: 12/23/2020)

01/02/2 478 STIPULATED ORDER Extending Time to Respond to 472 and 473 ; Response

021

due by 1/5/2021, Signed by District Judge Judith E. Levy. (WBar) (Entered:

01/02/2021)

01/05/2 479 MOTION for Inclusion of Mohammed Alam, Julia Campos-Zapata, Alberto

021

Hernandez-Guerrero, Felix Temich-Malaga, and Azal Saleh in the Habeas

Litigation Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona

Ramirez, Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia

Toledo, Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary

Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy

Sosa Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of

Adam Lauring MD, PhD [Redacted], # 3 Exhibit B - Medical Record Excerpts -

Julia Campos-Zapata [Filed Under Seal], # 4 Exhibit C - Medical Record

Excerpts - Felix Temich-Malaga [Filed Under Seal], # 5 Exhibit D - Medical

Record Excerpts - Azal Saleh [Filed Under Seal], # 6 Exhibit E - Declaration of

Albert Hernandez-Guerrero, # 7 Exhibit F - Medical Record Excerpts - Albert

Hernandez-Guerrero [Filed Under Seal], # 8 Exhibit G - COVID-19 Testing

Log [Filed Under Seal], # 9 Exhibit H - Medical Record Excerpts - Mohammed

Alam [Filed Under Seal], # 10 Exhibit I - Chronic Care Report [Filed Under

Seal]) (Rhee, Jeannie) (Entered: 01/05/2021)

01/05/2 480 SEALED EXHIBIT A - Declaration of Adam Lauring MD, PhD; Exhibit B -

021

Medical Record Excerpts - Julia Campos-Zapata; Exhibit C - Medical Record

Excerpts - Felix Temich-Malaga; Exhibit D - Medical Record Excerpts - Azal

Saleh; Exhibit F - Medical Record Excerpts - Albert Hernandez-Guerrero;

Exhibit G - COVID-19 Testing Log; Exhibit H - Medical Record Excerpts -

Mohammed Alam; Exhibit I - Chronic Care Report re 479 MOTION for

Inclusion of Mohammed Alam, Julia Campos-Zapata, Alberto Hernandez-

Guerrero, Felix Temich-Malaga, and Azal Saleh in the Habeas Litigation

Group by Qaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez,

Guo Yan Lin Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo,

Jose Gomez Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez

Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa

Carillo, Amer Toma, Johanna Whernman, William Whernman, Min Dan

Zhang. (Attachments: # 1 Exhibit B - Medical Record Excerpts - Julia Campos-

Zapata, # 2 Exhibit C - Medical Record Excerpts - Felix Temich-Malaga,

# 3 Exhibit D - Medical Record Excerpts - Azal Saleh, # 4 Exhibit F - Medical

Record Excerpts - Albert Hernandez-Guerrero, # 5 Exhibit G - COVID-19

Testing Log, # 6 Exhibit H - Medical Record Excerpts - Mohammed Alam,

# 7 Exhibit I - Chronic Care Report) (Rhee, Jeannie) (Entered: 01/05/2021)

01/05/2 481 RESPONSE to 473 SEALED MOTION for Inclusion of Guo Yan Lin Castro in

021

the Habeas Litigation Group re 472 MOTION for Inclusion of Guo Yan Lin

Castro in the Habeas Litigation Group [Redacted] by Qaid Alhalmi, Waad

Baras filed by Rebecca Adducci. (Attachments: # 1 Exhibit Article, # 2 Exhibit Article, # 3 Exhibit Article) (Newby, Jennifer) (Entered: 01/05/2021)

01/06/2 482 SEALED EXHIBIT re 477 Sealed Document - Other, by Rebecca Adducci.

021

(Newby, Jennifer) (Entered: 01/06/2021)

01/07/2 483 EXPERT REPORT ON FACILITY INSPECTION by Qaid Alhalmi, Waad

021

Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin Castro, Ruby

Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche

Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales

Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer Toma, Johanna

Whernman, William Whernman, Min Dan Zhang (Attachments: # 1 COVID-19

Inspection and Report of Calhoun County Correctional Facility by Dr. Homer

Venters, # 2 Declaration of Darren Gardner (Redacted), # 3 Declaration of

Aaron E. Haier (Redacted), # 4 Declaration of Sarah Maneval (Redacted))

(Rhee, Jeannie) (Entered: 01/07/2021)

01/07/2 484 SEALED Declaration of Darren Gardner re 483 Report (Free),, by Qaid

021

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 01/07/2021)

01/07/2 485 SEALED Declaration of Aaron E. Haier re 483 Report (Free),, by Qaid

021

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 01/07/2021)

01/07/2 486 SEALED Declaration of Sarah Maneval re 483 Report (Free),, by Qaid

021

Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo Yan Lin

Castro, Ruby Briselda Escobar, Jose Mauricio Garcia Toledo, Jose Gomez

Santiz, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria,

Emanuel Rosales Borboa, Yohandry Ley Santana, Rudy Sosa Carillo, Amer

Toma, Johanna Whernman, William Whernman, Min Dan Zhang. (Rhee,

Jeannie) (Entered: 01/07/2021)

PACER Login:

PACER Service Center Transaction Receipt
01/10/2021 16:55:33 CRClearinghouse Client Code: Hill

Description: Docket Report

Billable Pages:

30

Exempt flag: Not Exempt

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 Case 5:20-cv-10829-JEL-APP ECF No. 29 filed 04/09/20 PageID.628 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner, Case No. 20-10829

and

Judith E. Levy

United States District Judge

Ruby Briselda Escobar and Amer

Toma,

Mag. Judge Anthony P. Patti

Plaintiff-Intervenors,

v.

Rebecca Adducci, et al.,

Respondents. ________________________________/
OPINION AND ORDER GRANTING IN PART PLAINTIFFINTERVENORS’ EMERGENCY MOTION FOR A TEMPORARY
RESTRAINING ORDER [20]
This is a request for emergency injunctive relief in the form of Plaintiff-Intervenor Amar Toma’s immediate release from immigration detention. Toma claims that his continued civil detention violates his Fifth Amendment rights by exposing him to substantial risk of illness

Case 5:20-cv-10829-JEL-APP ECF No. 29 filed 04/09/20 PageID.629 Page 2 of 16
and death related to COVID-19. For the foregoing reasons, the Court GRANTS IN PART this emergency application for relief. BACKGROUND
Plaintiff-Intervenor Amer Toma is a fifty-five-year-old Iraqi citizen. (ECF No. 17, PageID.257.) He has been civilly detained under ICE custody since September 21, 2019, first at the Monroe County Jail and subsequently, as of February 2020, at the Calhoun County Correctional Facility. (Id. at PageID.257-258.) On February 25, 2020, Toma was granted Withholding of Removal under the Convention Against Torture. (Id. at PageID.287). The government appealed and has continued Toma’s detention during the pendency of its appeal. (Id.)
Toma alleges that he suffers from hypotension. (Id. at PageID.258.) He has three bullet wounds, acquired during the war between Iraq and Iran, that require him to rely on a wheelchair for mobility. (Id.). Toma also has a history of prostrate issues and a hernia, and a doctor has recommended that he be screened for prostate cancer. (Id.)
Toma brings suit against the following Respondents and Defendants: Rebecca Adducci, the Detroit District Director of U.S. Immigration and Customs Enforcement; Matthew T. Albence, Deputy
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Director of U.S Immigration and Customs Enforcement; Chad Wolfe, Acting Secretary of the U.S. Department of Homeland Security; William P. Barr, Attorney General; and U.S. Immigrations and Customs Enforcement (ICE). (Id. at 259.) PROCEDURAL HISTORY
On March 30, 2020, Petitioner Janet Malam filed both an Emergency Petition for Writ of Habeas Corpus (ECF No. 1) and an Application for Temporary Restraining Order (ECF No. 2). On April 2, 2020, Plaintiff-Intervenors Ruby Briselda Escobar and Amer Toma filed a Motion to Intervene. (ECF No. 8.) On April 3, 2020, the Court granted the motion from the bench, finding that Escobar and Toma were entitled to intervention as of right pursuant to Federal Rule of Civil Procedure 24(a) and noting that, in the alternative, they qualified for permissive intervention under Rule 24(b). On April 5, 2020, Escobar and Toma filed an Emergency Habeas Petition and Complaint for Injunctive Relief. (ECF No. 17.) Also on April 5, Escobar and Toma filed an Emergency Motion for Temporary Restraining Order. (ECF No. 18.) Escobar has since been released from ICE detention on an Order of Supervision. (ECF No. 26-1, PageID.595.)
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On April 5, 2020, the Court issued an Opinion and Order granting in part Malam’s Application for Temporary Restraining Order (ECF No. 22), followed by an Amended Opinion and Order on April 6, 2020 (ECF No. 23). Given the substantial overlap of legal and factual issues between Toma’s and Malam’s requests for emergency injunctive relief, the Court set an expedited briefing schedule and ordered the parties to focus their briefing on whether the Court’s reasoning in its April 6, 2020 Opinion and Order applied to this motion. (ECF No. 24.) Respondents responded on April 7, 2020 (ECF No. 26), and Toma replied on April 8, 2020 (ECF No. 27).
For the reasons stated below, the Court GRANTS IN PART Toma’s application for a temporary restraining order requiring his immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. LAW AND ANALYSIS
I. Jurisdiction In its April 6, 2020 Opinion and Order, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 2441. (ECF No. 23, PageID.542.) In the alternative, the Court found that it had jurisdiction pursuant to 28
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U.S.C. § 1331. (Id. at PageID.544.) The Court held that sovereign
immunity did not apply (Id. at PageID.544-547) and that no other statute
deprived the Court of jurisdiction (Id. at PageID.547-549). Toma’s case
presents the same jurisdictional questions. With respect to jurisdiction,
the Court adopts its April 6, 2020 Opinion and Order in full.
II. Legal Standard
As set forth in the Court’s April 6, 2020 Opinion and Order,
In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015).
(ECF No. 23, PageID.550-551.)
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III. Analysis Each of the four factors weighs in favor of granting emergency injunctive relief. The Court grants Toma’s motion in part for the reasons set forth below. The Court found that emergency injunctive relief was warranted in Malam’s case because Malam had shown: a high likelihood of irreparable injury absent an injunction, both in the form of substantial risk to her health and life from COVID-19 and due to her alleged constitutional violations (ECF No. 23, PageID.551-562); a strong likelihood of success on the merits with respect to both the objective and subjective components of a deliberate indifference claim (Id. at PageID.562-571); and that both the balance of equities and public interest favored her immediate release (Id. at PageID.571-574). Malam’s increased risk of severe illness and death from COVID-19, stemming from fifteen underlying health conditions, contributed to the Court’s findings of irreparable injury—“Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result [of continued detention]” (ECF No. 23, PageID.553)—and likelihood of success on the merits—“even with [] precautionary measures, in light of
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Petitioner’s underlying health conditions, she is not ensured anything close to ‘reasonable safety.’” (ECF No. 23, PageID.568.)
Respondents contend that because Toma is at less risk of severe complication from COVID-19 than Malam, the Court’s reasoning from its earlier opinion does not apply to Toma’s motion. (ECF No. 26, PageID.587.) Specifically, Respondents argue that “Toma is not in the age group identified by the CDC as being at higher risk for serious illness, nor does he set forth a medical condition that makes him particularly vulnerable to the respiratory illness COVID-19.” (Id.)
Toma replies that Respondents’ definition of “high risk” is unduly narrow, that Toma is at high risk of severe illness from COVID-19, and that therefore Toma has satisfied the standard for issuing emergency injunctive relief. (ECF No. 27.) Specifically, Toma alleges that his age (Toma is fifty-five years old), limited mobility (Toma relies at least in part on a wheelchair for mobility), hypotension, hernia, and prostrate issues and risk of cancer all place him at high risk of severe illness from COVID19. (Id. at PageID.10.)
Toma is undoubtedly at less risk of severe complication from COVID-19 than Malam was at the time of her application. Malam was
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fifty-six years old and presented fourteen underlying health conditions, whereas Toma is fifty-five years old and presents with four. But Toma’s lesser risk does not render a temporary restraining order inappropriate or unnecessary.
The Court’s April 6, 2020 Opinion and Order neither required a specific set or number of health conditions nor established a floor for the level of heightened risk of complications from COVID-19 that would justify immediate release from civil detention. Given the speed with which the virus spreads and the rate at which knowledge about the virus is developing, any such bright-line rule would be quickly rendered obsolete. By way of example: On March 23, 2020, there were two confirmed cases of COVID-19 among inmates at the Cook County Jail in Chicago, Illinois; on April 1, 2020—eight days later—167 inmates and 34 staff members had tested positive. 167 inmates at Cook County Jail confirmed positive for COVID-19, Sun-Times Wire (Apr. 1, 2020), https://chicago.suntimes.com/coronavirus/2020/4/1/21203767/cookcounty-jail-coronavirus-positive-covid-19. Id.
Instead, the Court found that Malam’s specific set of health conditions justified immediate release in her case based upon the record
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before the Court as of April 5, 2020. Today, the Court again declines to

set a floor for the level of risk a party must show to warrant immediate

release from immigration detention due to the COVID-19 pandemic.

Although Toma presents a less severe case than Ms. Malam, immediate

release is warranted because he is at a sufficiently heightened risk of

severe illness or death from COVID-19.

A. COVID-19 Developments as of April 8, 2020

As of April 8, 2020, there are now 20,346 confirmed cases of COVID-

19 and 959 known related deaths in the state of Michigan, with 287

confirmed cases and two deaths within the Michigan Department of

Corrections system specifically. See Coronavirus, Michigan.gov (Apr. 8,

2020),

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-

520743--,00.html. Additionally, U.S. Immigration and Customs

Enforcement reports thirty-two confirmed cases among ICE detainees,

including one in St. Clair County, Michigan, and eleven confirmed cases

among ICE employees at detention centers. ICE Guidance on COVID-19,

U.S. Immigration and Customs Enforcement (Apr. 8, 2020),

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

B. Toma’s Risk of Severe Illness or Death

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The Court’s April 6 Opinion and Order explains that Toma, like Malam, is at a substantial risk of contracting COVID-19 as a result of his continued detention: “In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions.” (ECF No. 23 at 29 (citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010).) Toma’s limited mobility, as a result of three bullet wounds requiring the use of a wheelchair, places him at even greater risk than the general population. According to the CDC, “[p]eople who have limited mobility” are among those who “might be at increased risk of becoming infected or having unrecognized illness.” People with Disabilities, CDC (Mar. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/peoplewith-disabilities.html.
Should he contract COVID-19, Toma’s age also places him at heightened risk of severe illness and death. Respondents properly point out that the CDC recognizes “[p]eople 65 years and older” as a discrete group “at high-risk for severe illness from COVID-19.” (ECF No. 26,
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PageID.589 (citing Groups at Higher Risk for Severe Illness, CDC (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html).) While CDC guidance is an appropriate point to begin risk analysis, the Court’s inquiry cannot end there. Indeed, the CDC itself acknowledges that “COVID-19 is a new disease and there is limited information regarding risk factors for severe disease.” Id. The Declaration of Doctor Jonathan Golob, Assistant Professor at the University of Michigan School of Medicine, concludes that “people over the age of 50 . . . living in an institutional setting . . . are at grave risk of severe illness and death from COVID-19.” (ECF No. 20-2, PageID.361.) The Declaration of Dr. Robert B. Greifinger concludes that “the high risk category for COVID-19” constitutes “adults over 50 years old or those with underlying disease” and that members of that group “are likely to suffer serious illness and death.” (ECF No. 20-3, PageID.372.) According to a CDC report, thirty-six percent—or more than one in three—patients admitted to intensive care units because of COVID-19-related illness were between the ages of forty-five and sixtyfour. Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)—United States, February 12–March 16, 2020, CDC (Mar. 26.
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2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm.

Respondents neither contest nor address these medical conclusions. The

Court finds the combination of Toma’s age, disability, and continued

detention presents a sufficient risk of severe illness or death from

COVID-19 such that the analysis in the Court’s April 6, 2020 order

applies, warranting emergency injunctive relief.

The Court finds that Toma’s other health conditions only further

warrant the issuance of a temporary restraining order. Toma has

hypotension, possible prostate cancer, and a hernia. (ECF No. 25,

PageID.468.) The record does not include direct evidence by which the

Court can conclude that Toma’s hypotension, prostate issues, and hernia

raise the risk of complications from COVID-19. But Toma alleges that he

has, overall, received incomplete medical care: “In detention, Mr. Toma

has not received any medication to control his blood pressure. He also has

not been able to access the medical care that he needs to get tested for

prostate cancer or to treat his hernia.” (ECF No. 20-5, PageID.469.)

Respondents allege that “[a]ccording to records available to ICE, [Toma]

does not require treatment for hypotension. See Obaid Dec., Ex. 2, ¶ 8.”

(ECF No. 26, PageID.590.) But the cited declaration only alleges that

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“Toma does not currently have a prescription for medication for hypotension.” (ECF No. 26-2, PageID.599.) The Court does not find this sufficient evidence to show that Toma’s hypotension does not require medical monitoring and possible treatment. CDC guidance notes that those at high-risk for severe illness from COVID-19 includes “[p]eople of all ages with underlying medical conditions, particularly if not well controlled.” Groups at Higher Risk for Severe Illness, CDC (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html. Toma’s alleged incomplete access to medical care weighs in favor of granting relief.
Accordingly, the Court adopts the reasoning of its April 6, 2020 Opinion and Order and applies it to this motion. Toma has shown: (1) a high chance of irreparable injury, both in the form of substantial risk to his health and life from COVID-19 and due to his alleged constitutional violations; (2) a strong likelihood of success on the merits with respect to both the objective and subjective components of a deliberate indifference
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claim;1 and (3) that both the balance of equities and public interest favor
his immediate release.
CONCLUSION
For the reasons stated above, Petitioner’s Application for a
Temporary Restraining Order is GRANTED IN PART. Respondent
Adducci is ORDERED to release Plaintiff-Intervenor Amer Toma on
April 9, 2020 for the duration of the COVID-19 State of Emergency in
Michigan or until further Court order. Toma will be subject to the
1 Plaintiff-Intervenors suggest Toma need only show the objective component in light of the Supreme Court’s ruling in Kingsley v. Hendrickson, which held that a pretrial detainee raising a Fourteenth Amendment excessive force claim satisfied his burden by showing “the force purposely or knowingly used against him was objectively unreasonable.” 135 S. Ct. 2466, 2473 (2015). In Richmond v. Huq, the Sixth Circuit held that “this shift in Fourteenth Amendment deliberate indifference jurisprudence calls into serious doubt whether [a plaintiff] need even show that the individual defendant-officials were subjectively aware of [the plaintiff’s] serious medical conditions and nonetheless wantonly disregarded them.” 885 F.3d 928, 938 n.3 (6th Cir. 2018). But in Martin v. Warren Cty., the Sixth Circuit reiterated that “[w]hether an objective standard applies to pretrial detainee claims of deliberate indifference and what the standard entails are open questions.” No. 19-5132, 2020 WL 360436, at *4 n.4 (6th Cir. Jan. 22, 2020), reh’g denied (Feb. 4, 2020). And in at least two cases post-Kingsley, the Sixth Circuit has applied both objective and subjective analysis to deliberate indifference claims. See J.H. v. Williamson Cty., 2020 F.3d 709, 717, 722-23 (applying an objective test for solitary confinement claim but two-part objective and subjective test for deliberate indifference claim); Winkler v. Madison Cty, 893 F.3d 877 (2018) (applying two-part standard for deliberate indifference claim without citing Kingsley). The Court need not answer the open question created by Kingsley because it finds that Toma satisfies both the objective and subjective components of a deliberate indifference claim.
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following restrictions: he is subject to fourteen days of home quarantine;

he must comply with all Michigan Executive Orders; and he must appear

at all hearings pertaining to his immigration proceedings. Respondents

may impose other reasonable nonconfinement terms of supervision.

Respondents are further RESTRAINED from arresting Toma for

civil immigration detention purposes until the State of Emergency in

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Temporary Restraining Order will expire on April 21, 2020, at

6:30 p.m. No later than April 14, 2020, at 12:00 p.m., Respondents must

show cause why this Order should not be converted to a preliminary

injunction. Petitioner may file a response no later than April 20, 2020, at

12:00 p.m.

IT IS SO ORDERED.

Dated: April 9, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 9, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager
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 Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.703 Page 1 of 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner, Case No. 20-10829

and

Judith E. Levy

United States District Judge

Ruby Briselda Escobar and Amer

Toma,

Mag. Judge Anthony P. Patti

Plaintiff-Intervenors,

v.

Rebecca Adducci, et al.,

Respondents. ________________________________/

OPINION AND ORDER CONVERTING TEMPORARY RESTRAINING ORDER INTO PRELIMINARY INJUNCTION [23]
On April 6, 2020, the Court issued an amended order granting a Temporary Restraining Order and requiring Petitioner Janet Malam’s
immediate release from ICE Custody. (ECF No. 23.) The TRO was set to expire on April 17, 2020, at 6:30pm EST. (Id. at PageID.575.) The Court

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ordered Respondent Adducci1 to show cause why the TRO should not be converted to a preliminary injunction. (Id.) On April 10, 2020, Respondent filed a response to the Court’s order to show cause. (ECF No. 30.) On April 16, 2020, Petitioner filed her reply. (ECF No. 32.) The Court now transforms the TRO into a preliminary injunction.
I. Factual Background Petitioner Janet Malam, born in the United Kingdom, is a lawful permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to the United States in 1967 at the age of four and is now fifty-six years old. (Id.) Prior to her release on April 6, 2020, Petitioner had been detained in the Calhoun County Correctional Facility in conjunction with removal proceedings at the Detroit Immigration Court. (Id.) Petitioner alleges that she suffers from a number of serious health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia;
1 Petitioner initially named as Respondents: Rebecca Adducci, the Detroit District Director of United States Immigration and Customs Enforcement (ICE); Matthew Albence, Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). In its April 6, 2020 Amended Order, the Court found that it had jurisdiction under 28 U.S.C. § 2241. (ECF No. 23, PageID.536.) Only Respondent Adducci is a proper respondent for Petitioner’s petition for habeas corpus. (ECF No. 23, PageID.549.)
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essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner’s extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
On March 30, 2020, Petitioner filed a petition requesting emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates Due Process Clause [of the Fifth and Fourteenth Amendments].” (ECF No. 1, PageID.17.) Petitioner simultaneously filed an Application for Temporary Restraining Order requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention. (ECF No. 2.) The Court granted Petitioner’s application on April 5, 2020 (ECF No. 22) and issued an amended order (ECF No. 23) on April 6, 2020
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Because Petitioner continues to show that she will be subject to irreparable injury absent an injunction, a high likelihood of success on the merits, and that the balance of equities and public interest weigh in favor of granting an injunction, the Court now converts its TRO into a preliminary injunction.
II. Legal Standard In determining whether to grant a preliminary injunction, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic
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remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court converts the temporary restraining order into a preliminary injunction.
III. Analysis The Court granted emergency injunctive relief because Petitioner had shown: a high likelihood of irreparable injury absent an injunction, both in the form of substantial risk to her health and life from COVID-19 and due to her alleged constitutional violations (ECF No. 23, PageID.551–562); a strong likelihood of success on the merits with respect to both the objective and subjective components of a deliberate indifference claim (Id. at PageID.562–571); and that the balance of equities and public interest favored her immediate release (Id. at PageID.571–574). Respondent Adducci now argues that 1) the Court erred in finding a high likelihood of irreparable harm because “Malam has not shown that she has a substantial risk of exposure to COVID-19 at CCDC” (ECF 30, PageID.648); 2) Petitioner has not demonstrated a likelihood of success
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on the merits because she “has not shown that Respondent is deliberately indifferent in light of the precautions taken at CCDC to reduce exposure to COVID-19” (Id. at PageID.653); and 3) “Malam cannot show that her continued detention amounts to impermissible punishment” (Id. at PageID.658).
From this Court’s perspective, Respondent turns a blind eye to the weight of public health evidence recognizing Petitioner’s release as the only reasonable response to an extraordinary and deadly pandemic. Respondent concedes that “[i]t is undisputed that individuals with certain underlying health conditions, like Malam, are at an increased risk of adverse health consequences from COVID-19.” (ECF No. 30, PageID.653.) And as the Court found, “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility.” (ECF No. 23, PageID.559.) No conditions of confinement at the Calhoun County Correctional Facility will be
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sufficient to protect this Petitioner’s health, life, and constitutional rights. A preliminary injunction is warranted.
A. Petitioner’s Risk of Exposure to COVID-19 Respondent argues that while there is some risk that Petitioner will contract COVID-19 should she return to the Calhoun County Correctional Facility, that risk is not high enough to constitute irreparable harm. In Helling v. McKinney, the Supreme Court found that the petitioner had stated an Eighth Amendment deliberate indifference claim where he alleged an “unreasonable risk of serious damage to his future health.” 509 U.S. 25, 35 (1993). The thrust of Respondent’s argument appears to be that until there is a confirmed case of COVID19, or perhaps an outbreak of the illness it causes, in the Calhoun County Correctional Facility, Petitioner cannot show that COVID-19 poses an unreasonable risk of infection:  “Malam simply has not shown that she has a substantial risk of exposure to COVID-19 at CCDC.” (ECF No. 30, PageID.645.)
 “Malam has not shown anything about CCDC, in light of the precautions taken, that puts her at a substantial risk of exposure.” (ECF No. 30, PageID.650.)
 “While the precautions do not eliminate the risk, the constitution does not require as much.” (ECF No. 30, PageID.645.) 7

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.710 Page 8 of 26
 “There are no suspected cases of COVID-19 at CCDC, which tends to suggest the measures are reasonably effective.” (ECF No. 30, PageID.652.)
 “[T]o state a constitutional claim, she cannot rely on the general bad effects of a deadly virus[;] she has to show that she is specifically at a substantial risk for exposure by some condition at CCDC.” (ECF No. 30, PageID.650.)
 “Nowhere in the decision did the Helling Court hold potential for exposure to a serious disease sufficient to establish a constitutional violation. New mutations and strains of viruses are a part of the human condition.” (ECF No. 30, PageID.649.)
Respondent’s arguments fly in the face of public health evidence regarding the COVID-19 pandemic, which identifies communal detention facilities as creating an unacceptably high risk of contracting COVID-19. The Calhoun County Correctional Facility is a communal detention facility; Petitioner’s return would place her at an unreasonable and substantial risk of COVID-19 infection.
Despite repeated opportunities to do so, Respondent to date has failed to address the public health evidence in the record and on which Petitioner relies. Petitioner submitted the declarations of two medical experts assessing the risk of COVID-19 in detention facilities. Because any decision regarding relief must be grounded in scientific and public
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health evidence, the Court includes the most relevant sections of the two
declarations in their entirety.
Dr. Joseph Amon, Director of Global Health and Clinical Professor
at the Drexel Dornsife School of Public Health and Associate Professor of
Epidemiology at the Johns Hopkins University Bloomberg School of
Public Health, declares the following:
 The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions. (ECF No. 6-2, PageID.82.)
 Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care. People live in close quarters and are also subject to security measures which prohibit successful “social distancing” that is needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection. (Id.)
 The lack of daily tests of staff who have ongoing community contacts presents a risk of introduction of the virus into the
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detention facility. The possibility of asymptomatic transmission means that monitoring fever of staff or detainees is also inadequate for identifying all who may be infected and preventing transmission. This is also true because not all individuals infected with COVID-19 report fever in early stages of infection. The lack of widespread testing in communities and the current presence of COVID19 in all 50 states means that it is impractical to ask detainees about their travel history— all communities should be assumed to have community transmission which is why statewide and national restrictions on movement and gatherings have been put in place. The crowded conditions, in both sleeping areas and social areas, and the shared objects (bathrooms, sinks, etc.) will facilitate transmission. (Id. at PageID.85–86.)
 Procedures that may have worked for other outbreaks, like flu, will not be sufficient to control COVID-19 and physical distancing is essential. (Id. at PageID.86.)
 The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of individuals who can be considered at high-risk of severe disease if infected with COVID-19 is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. (Id.)
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Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.713 Page 11 of 26
Dr. Jonathan Golob, an Assistant Professor at the University of
Michigan School of Medicine who specializes in infectious diseases and
internal medicine, further declares the following:
 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 for COVID-19 transmission in a community or institution. (ECF No. 6-3, PageID.111.)
 Given the avid spread of COVID-19 in skilled nursing facilities and cruise ships, it is reasonable to expect COVID19 will also readily spread in detention centers, particularly when residents cannot engage in social distancing measures, cannot practice proper hygiene, and cannot isolate themselves from infected residents or staff. With new individuals and staff coming into detention centers who may be asymptomatic or not yet presenting symptoms, the risk of infection rises even with symptom screening measures. (Id. at PageID.112.)
 This information provides many reasons to conclude that vulnerable people . . . living in an institutional setting, such as an immigration detention center, prison, or jail, with limited access to adequate hygiene facilities, limited ability to physically distance themselves from others, and exposure to potentially infected individuals from the community are at grave risk of severe illness and death from COVID-19. (Id.)
Respondent’s briefing mentions neither declaration. Respondent is
free to disagree with the conclusions drawn by these declarations, but to
contest them in this case, she must present public health evidence of her
11

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.714 Page 12 of 26
own demonstrating either that the risk is not as significant as Petitioner’s evidence shows or that it can be mitigated through precautions. But Respondent does not offer any public health evidence of her own beyond the CDC Guidance, which makes recommendations for precautionary measures but does not assess the resulting risk of COVID19 infection once those measures have been implemented.
The Court acknowledges that ICE and the Calhoun County Correctional Facility have employed some precautionary measures, including: “tracking the disease, screening incoming detainees, isolating and testing symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing handwashing stations.” (ECF No. 23, PageID.513-14.) Furthermore, the Court is aware of updated guidance regarding precautionary measures within ICE detention facilities. See Case No. 20-10921, Zaya v. Adducci (E.D. Mich. Apr. 15, 2020), ECF No. 7-5 (COVID-19 Pandemic Response Requirements, U.S. Immigration and Customs Enforcement (Apr. 10,
12

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.715 Page 13 of 26
2020)). This new guidance calls for: requiring inmates with symptoms to wear a cloth face mask, reducing detainee populations to seventy-five percent capacity, housing of detainees in individual cells, instructing detainees to sleep “head to foot,” extending recreation, law library, and meal hours to allow staggering and reduce crowd size, and rearranging beds in housing units to ensure sufficient distance. Id. These are undoubtedly important additional precautions. But the public health evidence in the record explains why these precautionary measures ultimately fall short of protecting this Petitioner’s health and constitutional rights. Given the asymptomatic nature of transmission, the impossibility of adequate social distancing in communal detention spaces, and the inability or unwillingness to test all inmates and staff, Petitioner remains at an unreasonable and substantial risk of infection and consequently of dire health consequences, including death.
Respondent also critiques the Court’s use of illustrative examples at other detention facilities: “this Court found harm was imminent based on conditions at other facilities that are not specific to Malam.” (ECF No. 30, PageID.650.) Respondent argues that in order to prevail, Petitioner must show risks specific to the Calhoun County Correctional Facility.
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Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.716 Page 14 of 26

She cites to this Court’s opinion in Awshana v. Adducci, where the

Honorable David M. Lawson held that “the petitioners have leveled only

generalized allegations; if those were deemed sufficient, then all inmates

would be entitled to release until the pandemic subsides.” (ECF No. 30,

PageID.650 (citing Awshana v. Adducci, Case No. 20-10699 (E.D. Mich.

April 9, 2020), ECF No. 19).)

The Court’s references to other facilities illustrate the risk of

infection at communal detention facilities, of which Calhoun County

Correctional Facility is one. By example, although the serious outbreak

at the Cook County Jail—now recognized as the single greatest source of

COVID-19 infections in the United States, see Timothy Williams &

Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads

Behind

Bars,

NY

Times

(Apr.

8,

2020),

nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html—

does not directly increase the risk to Petitioner, it shows how a pandemic

can sweep into communal detention environments despite precautionary

measures being taken prior to any confirmed cases. See Sheriff Dart

Expands Precautionary Measures for COVID-19 at Cook County

Department of Corrections, Cook County Sheriff’s Office (Mar. 12, 2020),

14

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.717 Page 15 of 26

https://www.cookcountysheriff.org/sheriff-dart-expands-precautionary-

measures-for-covid-19-at-cook-county-department-of-corrections (noting

significant precautionary measures similar to those at Calhoun County

Correctional Facility); Update on Efforts to Reduce Population at Cook

County Jail and Ongoing Precautions to Prevent COVID-19, Cook County

Sheriff’s

Office

(Mar.

18,

2020),

https://www.cookcountysheriff.org/update-on-efforts-to-reduce-

population-at-cook-county-jail-and-ongoing-precautions-to-prevent-

covid-19 (noting expansion of precautionary measures). Despite

precautionary measures, cases of COVID-19 among inmates in the Cook

County Jail exploded from two to 167 in eight days. (ECF No. 29,

PageID.635.) On a nationwide level, the curve of COVID-19 infections

among Federal Bureau of Prison inmates shows no sign of flattening,

again despite significant precautionary measures. See Walter Pavlo,

Federal Bureau of Prisons Institutions Not Showing Any Signs of

“Flattening

Curve,”

Forbes

(Apr.

15,

2020),

https://www.forbes.com/sites/walterpavlo/2020/04/15/federal-bureau-of-

prisons-institutions-not-showing-any-signs-of-flattening-

curve/#46f2999f54dd. ICE facilities in Michigan have also seen a rise of

15

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.718 Page 16 of 26
COVID-19 cases. As Petitioner notes, “on March 31, 2020, when this case was filed, there were no cases of COVID-19 in Michigan ICE detentions, but within a matter of 2 weeks, there are 3 cases confirmed of detainees in Michigan that have contracted COVID-19 in ICE custody.” (ECF No. 32, PageID.695.)
The Court’s finding regarding risk of infection is worth repeating:
[I]n the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility.
(ECF No. 23, PageID.559.) The Court can only conclude that Respondent, in continuing to
challenge Petitioner’s release, is ignoring the risks of the COVID-19 pandemic—the asymptomatic nature of its spread, the exponential character of its growth, and the deadliness of its impact—to Calhoun County Correctional Facility’s most vulnerable inmates, thereby jeopardizing the health and lives of those in her custody. The Court finds that Petitioner, were she to be returned to the Calhoun County Correctional Facility, would be at an unreasonable and substantial risk
16

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.719 Page 17 of 26
of COVID-19 infection; Petitioner therefore has demonstrated a high likelihood of irreparable injury.
2. Respondent’s Deliberate Indifference Respondent hinges her deliberate indifference argument on the fact that ICE has taken some precautions consistent with CDC guidance to reduce the risk of infection at the Calhoun County Correctional Facility:  Because the precautions taken at CCDC are reasonable under the circumstances, Malam cannot establish a constitutional violation. (ECF No. 30, PageID.654.)  While the measures taken at CCDC may not eliminate all potential for exposure to COVID-19, they significantly reduce the potential, and are, therefore, reasonable, and preclude a finding of deliberate indifference. (ECF No. 30, PageID.654.) Respondent cites to the Supreme Court in Farmer v. Brennan, which held that “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” (ECF No. 30, PageID.653 (citing 511 U.S. 825, 844 (1994)).) But the public health evidence above mandates the Court’s earlier conclusion: “the only reasonable response by Respondent[] is the release of Petitioner; any
17

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.720 Page 18 of 26
other response demonstrates a disregard of the specific, severe, and lifethreatening risk to Petitioner from COVID-19.”
Respondent points to two cases in which a Circuit court found no deliberate indifference where detention facilities took precautions to reduce the risk of infection; this precedent does not shield Respondent here.
In Wooler v. Hickman County¸ the Sixth Circuit found that a county jail, sheriff, nurse, and physician were not deliberately indifferent, based on the information available to each, to a prisoner’s risk of amethicillinresistant staphylococcus aureus (MRSA) infection from an infected cellmate. 377 F. App’x 502 (6th Cir. 2010). The court found that absent knowledge of a specific infection, general knowledge of the possibility of MSRA among inmates was too generalized to show knowledge of a substantial risk to the plaintiff. Id. at 505. Additionally, the court found that the jail nurse took reasonable precautions in response to an MRSA infection in the jail: “[S]he cleaned every cell, quarantined the infected inmates, and distributed information about MRSA. No reasonable jury could conclude that those actions constituted deliberate indifference.” Id. at 506. In response to the plaintiff’s argument that the nurse should have
18

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.721 Page 19 of 26
done more, the court noted that the plaintiff did not provide “any evidence showing that Nurse Tarver did, in fact, have other options.” Id.
Wooler is distinguishable from the current case. As this case and related litigation in the Eastern District of Michigan and across the country demonstrates, Respondent is fully aware of the scope and magnitude of the COVID-19 pandemic. The risk that COVID-19 will make its way into the Calhoun County Correctional Facility is far from hypothetical. As of April 17, 2020, 105 ICE detainees and twenty-five detention center employees have tested positive for COVID-19. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement (Apr. 16, 2020), https://www.ice.gov/coronavirus (last updated Apr. 17, 2020). The public health evidence before the Court shows that, even given current precautionary measures, the risk is substantial and unreasonable. Additionally, Respondent, unlike the nurse in Wooler, has additional precautionary measures at her disposal: the release of Petitioner. ICE has released other detainees due to the risks of COVID19. In this case, Respondent released Plaintiff-Intervenor Ruby Briselda Salguero-Escobar subject to an Order of Supervision on April 6, 2020. (ECF No. 26-1, PageID.595.) Nationwide, ICE has released more than
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Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.722 Page 20 of 26
160 detainees. See Matt Katz, ICE Quietly Releases Hundreds of Local Immigrants as COVID-19 Tears Through Jails, Gothamist (Apr. 14, 2020), https://gothamist.com/news/ice-quietly-releases-hundreds-localimmigrants-covid-19.
Respondent also points to Butler v. Fletcher, in which the Eighth Circuit found that a county jail sheriff was not deliberately indifferent to the risk of a tuberculosis infection where the county adopted “policies [that] specifically acknowledged the risk and promulgated detailed procedures for the diagnosis, segregation, and treatment of . . . inmates infected with active cases of TB.” 465 F.3d 340, 345 (8th Cir. 2006). Butler is distinguishable—and Wooler further distinguishable—because of the scope of the situation today. COVID-19 is neither MRSA nor tuberculosis. Wooler and Butler suggest precautions can reasonably mitigate the risk of tuberculosis or MRSA in conditions of communal confinement. COVID19 is a global pandemic of unparalleled scope, and the public health evidence available to the Court suggests that communal confinement cannot ensure detainees reasonable safety from infection.
Accordingly, any response short of authorizing release from the Calhoun County Correctional Facility for this Petitioner, whose
20

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.723 Page 21 of 26
underlying health conditions expose her to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk. Respondent pleads that “[t]he Court seeks to hold CCDC to a standard that is more than the [C]onstitution requires.” (ECF No. 30, PageID.654.) To the contrary, Petitioner is likely to succeed on the merits of her Fifth Amendment deliberate indifference claim. The Constitution requires Petitioner’s continued release.
3. Continued Confinement as Punishment Due to the expedited nature of this case, the Court and the parties have applied two legal standards. The Court has analyzed Petitioner’s Fifth Amendment claim “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov’t, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). Additionally, the Court, in its April 6, 2020 Amended Order, cited to the standard the Supreme Court set forth in Bell v. Wolfish: “[U]nder
21

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.724 Page 22 of 26
the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.” 441 U.S. 520, 535 (1979). (ECF No. 23, PageID.563.) Petitioner is a civil detainee. Respondent concedes that Petitioner can show she was subjected to unconstitutional punishment “by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” (ECF No. 30, PageID.658 (citing J.H. v. Williamson Cty., 951 F.3d 709, 717 (6th Cir. 2020).)
The Eighth Circuit in Butler found that the deliberate indifference test, not the freedom from punishment test, applied to a plaintiff’s claim challenging the adequacy of precautionary measures to reduce the risk of infection: “The governmental duty to protect at issue in this case is not based on a pretrial detainee's right to be free from punishment but is grounded in principles of safety and general well-being.” 465 F.3d at 344. The court cited to the Supreme Court in DeShaney v. Winnebago County Dept. of Soc. Serv., which held:
[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits
22

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.725 Page 23 of 26
on state action set by the Eighth Amendment and the Due Process Clause. 489 U.S. 189, 200. The deliberate indifference standard applies in this case. Petitioner has satisfied her burden under that test. Accordingly, the Court need not determine whether the freedom from punishment standard also applies, and if it does, whether and to what extent it differs from the deliberate indifference standard. Regarding Respondent’s third argument, the Court will only note that Respondent’s assertion regarding Petitioner’s criminal history is irrelevant. Respondent states, “not only does Malam’s criminal history and present behavior suggest detention is not excessive, it also suggests she is unlikely to comply with a shelter in place order or maintain social distancing even if released.” (ECF No. 30, PageID.660.) Petitioner was released on April 6, 2020; Respondent has provided no evidence that Petitioner has failed to comply with the terms of her release or the requirements of Michigan’s executive orders since her release. Respondent’s argument is conclusory and does not relate to Petitioner’s claim regarding the risks posed by her continued detention.
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Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.726 Page 24 of 26
The Court finds that Petitioner continues to show that she would face a high likelihood of irreparable harm absent a preliminary injunction, a significant likelihood of success on the merits, and that the balance of equities and public interest favor her release.2 The Court will convert its temporary restraining order into a preliminary injunction.
IV. Conclusion As of April 17, 2020, 105 ICE detainees and twenty-five detention center employees have tested positive for COVID-19. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (last updated Apr. 17, 2020). Sadly, and regrettably, over the coming weeks and months some ICE detainees will die of COVID-19. Equally sadly and regrettably, some detention center employees will die as well. Given the nature of this pandemic, those results are inevitable. The Court deeply hopes that time will prove the Government right: that the TRO and permanent injunction were stronger protections than
2 Respondent does not address the balance of equities or public interest in her response brief. The Court finds that the analysis from its April 6, 2020 Amended Opinion and Order applies and that these two factors favor granting injunctive relief. (ECF No. 23, PageID.571–574.)
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Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.727 Page 25 of 26
necessary for a fifty-six-year-old woman with fourteen underlying health conditions in the face of a deadly pandemic. But before the Court now is a record which shows 1) Petitioner is at unreasonable risk of contracting COVID-19 should she remain in the Calhoun County Correctional Facility, regardless of precautions taken, and 2) Petitioner is at serious risk of severe illness and death should she contract COVID-19. To order Petitioner’s continued civil detention would be to play Russian roulette with her rights and with her life. A preliminary injunction requiring Petitioner’s continued release is both appropriate and necessary. Accordingly,
The Court GRANTS a preliminary injunction mandating Petitioner Malam’s continued release.
Petitioner remains subject to the following restrictions: she is subject to a total of fourteen days of home quarantine; she must comply with all Michigan Executive Orders; and she must appear at all hearings pertaining to her immigration proceedings. Respondent may impose other reasonable nonconfinement terms of supervision.
Respondent is further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in
25

Case 5:20-cv-10829-JEL-APP ECF No. 33 filed 04/17/20 PageID.728 Page 26 of 26

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

IT IS SO ORDERED.

Dated: April 17, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 17, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

26

 
 Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.895 Page 1 of 20

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner, Case No. 20-10829

and

Judith E. Levy

United States District Judge

Ruby Briselda Escobar and Amer

Toma,

Mag. Judge Anthony P. Patti

Plaintiff-Intervenors,

v.

Rebecca Adducci, et al.,

Respondents. ________________________________/
OPINION AND ORDER CONVERTING TEMPORARY RESTRAINING ORDER INTO PRELIMINARY INJUNCTION [29]
On April 9, 2020, the Court issued an amended order granting a Temporary Restraining Order and requiring Plaintiff-Intervenor Amer Toma’s immediate release from ICE Custody. (ECF No. 29.) The TRO was set to expire on April 21, 2020, at 6:30pm EST. (Id. at PageID.575.) The Court ordered Respondent Adducci to show cause why the TRO should not be converted to a preliminary injunction. (Id.) On April 14, 2020,

Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.896 Page 2 of 20
Respondent filed a response to the Court’s order to show cause. (ECF No.
31.) On April 20, 2020, Petitioner filed his reply.1 (ECF No. 37.) The Court
now transforms the TRO into a preliminary injunction.
I. Factual Background
Plaintiff-Intervenor Amer Toma is a fifty-five-year-old Iraqi citizen.
(ECF No. 17, PageID.257.) He has been civilly detained under ICE
custody since September 21, 2019, first at the Monroe County Jail and
subsequently, as of February 2020, at the Calhoun County Correctional
Facility. (Id. at PageID.257–258.) On February 25, 2020, Toma was
granted Withholding of Removal under the Convention Against Torture.
(Id. at PageID.287). The government appealed and, prior to the Court’s
1 On April 18, 2020, Plaintiff-Intervenor Toma moved both to extend the Court’s temporary restraining order by fourteen days and for expedited discovery regarding the conditions of confinement at and precautionary measures taken by the Calhoun County Correctional Facility. (ECF No. 34.) He argued that “[t]o address adequately the arguments raised by Defendants, which relate to the likelihood of COVID-19 entering and spreading in the facility, and the risk that Mr. Toma faces of contracting it, Plaintiff needs discovery.” (Id. at PageID.735.) On April 19, 2020, Respondent responded, objecting to Toma’s motion. (ECF No. 35.) She argued that “[b]ased on this Court’s ruling on the preliminary injunction for Petitioner Malam, this Court had all of the information about Calhoun County Correctional Center it needed to make a determination as to deliberate indifference,” and thus “the only issue is whether Toma is actually at a high-risk of serious harm from COVID-19.” (Id. at PageID.795.) Agreeing with Respondent, the Court denied Toma’s motion for an extension but ordered Respondent to provide Toma with his intake and medical records no later than 5:00pm EST on April 20, 2020. (ECF No. 36, PageID.804.)
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Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.897 Page 3 of 20
temporary restraining order, continued Toma’s detention during the pendency of its appeal. (Id.)
Toma alleges that he suffers from hypotension. (Id. at PageID.258.) He has three bullet wounds, acquired during the war between Iraq and Iran, that he alleges require him to rely on a wheelchair for mobility. (Id.). Toma also has a history of prostrate issues and a hernia, and a doctor has recommended that he be screened for prostate cancer. (Id.)
On April 5, 2020, Toma filed a petition requesting relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Toma], with appropriate precautionary public health measures, on the grounds that [his] continued detention violates Due Process Clause.” (ECF No. 17, PageID.290.) Also, on April 5, 2020, Toma filed a Motion for Temporary Restraining Order requesting that the Court order his release during the pendency of his immigration proceedings due to the substantial risk to his health posed by COVID-19 as a result of his continued detention. (ECF No. 20.) The Court granted Toma’s motion on April 9, 2020. (ECF No. 29.)
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Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.898 Page 4 of 20
Because Toma continues to show that he will be subject to irreparable injury absent an injunction, a high likelihood of success on the merits, and that the balance of equities and public interest weigh in favor of granting an injunction, the Court now converts its TRO into a preliminary injunction.
II. Legal Standard In determining whether to grant a preliminary injunction, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic
4

Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.899 Page 5 of 20
remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court converts the temporary restraining order into a preliminary injunction.
III. Legal Analysis In granting Toma a temporary restraining order, the Court relied on the analysis in its April 6, 2020 Amended Order granting Petitioner Janet Malam emergency injunctive relief. (ECF No. 29, PageID.633.) The Court granted Malam a temporary restraining order because Malam had shown: a high likelihood of irreparable injury absent an injunction, both in the form of substantial risk to her health and life from COVID-19 and due to her alleged constitutional violations (ECF No. 23, PageID.551562); a strong likelihood of success on the merits with respect to both the objective and subjective components of a deliberate indifference claim (Id. at PageID.562-571); and that both the balance of equities and public interest favored her immediate release (Id. at PageID.571-574). Respondent argued that Toma was at less risk than Malam of complications from a COVID-19 infection (ECF No. 26, PageID.587), but
5

Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.900 Page 6 of 20
the Court held that Toma’s age and limited mobility place him at sufficiently high risk of severe illness and/or death such that relief was warranted. (ECF No. 29, PageID.636.) The Court emphasized that its earlier opinions neither required a specific set or number of health conditions nor established a floor for the level of heightened risk of complications from COVID-19 necessary to justify immediate release from civil detention. (Id. at PageID.635.)
On April 17, 2020, the Court converted Petitioner Malam’s temporary restraining order into a preliminary injunction. (ECF No. 33.) The Court found that the public health evidence on the record showed that Petitioner Malam, should she return to the Calhoun County Correctional Facility, would be at substantial risk of COVID-19 infection and subsequent severe complications and/or death. (Id. at PageID.718– 719.) The Court concluded that “any response short of authorizing release from the Calhoun County Correctional Facility for [Petitioner Malam], whose underlying health conditions expose her to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk.” (Id. at PageID.722–723.) Accordingly, the Court held that a preliminary injunction was warranted because
6

Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.901 Page 7 of 20
Petitioner Malam had shown a continued high risk of irreparable injury, a strong likelihood of success on the merits, and that the balance of equities and public interest favored granting the injunction. (Id. at PageID.726.)
Respondent now argues that a preliminary injunction is unwarranted with respect to Plaintiff-Intervenor Toma because: 1) “Toma has not shown his risk of exposure to COVID-19 at CCDC is imminent sufficient to state a cognizable constitutional claim” (ECF No. 31, PageID.669); 2) “Toma fails to establish a likelihood of success on his due process claim” because he cannot show that Respondent was deliberately indifferent to a substantial risk of harm to Toma specifically (ECF No. 31, PageID.673); and 3) “The public interest factor favors denying injunctive relief” because releasing Toma would support a finding that it is unconstitutional for ICE to detain any noncitizen during the COVID-19 pandemic (ECF No. 31, PageID.682). Because the Court finds Respondent’s arguments lack merit, it will convert Toma’s temporary restraining order into a preliminary injunction.
A. Risk of Exposure to COVID-19
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Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.902 Page 8 of 20
Respondent has argued that neither Petitioner Malam nor Toma is at sufficient risk of COVID-19 infection to warrant a finding of irreparable harm. In converting Petitioner Malam’s temporary restraining order into a preliminary injunction, the Court assessed the public health evidence in the record and held that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility.” (ECF No. 33, PageID.718 (citing ECF No. 23, PageID.559).) Accordingly, the Court held that Malam, “were she to be returned to the Calhoun County Correctional Facility, would be at an unreasonable and substantial risk of COVID-19 infection; [Malam] therefore has demonstrated a high likelihood of irreparable injury.” (Id. at PageID.718–719.) Respondent, in her April 14, 2020 response, did not raise any new arguments with respect to the likelihood of Toma experiencing irreparable injury. (ECF No. 31.) The Court adopts the irreparable injury analysis of its April 17 Opinion and Order in full. Petitioner Toma has shown a high likelihood of irreparable injury were
8

Case 5:20-cv-10829-JEL-APP ECF No. 41 filed 04/22/20 PageID.903 Page 9 of 20
he to be returned to the Calhoun County Correctional Facility, both in the form of substantial risk to his health and life from COVID-19 and due to his alleged constitutional violations.
B. Deliberate Indifference to a Substantial Risk In granting Petitioner Malam a preliminary injunction, the Court held that “any response short of authorizing release from the Calhoun County Correctional Facility for this Petitioner, whose underlying health conditions expose her to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk.” (ECF No. 33, PageID.722–723.) Respondent concedes that considering the Court’s April 17, 2020 Opinion and Order, “the only issue [for preliminary injunction analysis] is whether Toma is actually at a highrisk of serious harm from COVID-19.” (ECF No. 35, PageID.795.) Respondent argues that Toma’s age, disability, and health conditions do not place him at a high risk of an adverse outcome from a COVID-19 infection. (ECF No. 31, PageID.673.) Because the Court finds that Toma’s age and mobility limitations place him at a high risk of severe complication and/or death from a COVID-19 infection, Toma has shown a high likelihood of success on the merits.
9

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1. Age Toma is fifty-five years old. (ECF No. 17, PageID.257.) In granting Toma emergency injunctive relief, the Court relied on the declarations of two medical professionals, both of which conclude that people over fifty are at serious risk of severe illness and death from COVID-19. (ECF No. 29, PageID.637.) Respondent argues that “the Court should give more weight to the findings of the CDC and the World Health Organization [WHO], over the two untested declarations from the physicians selected by Toma.” (ECF No. 31, PageID.674.) In its April 9, 2020 Order, the Court recognized CDC guidance but held that “the Court’s inquiry cannot end there.” (ECF No. 29, PageID.638.) Moreover, CDC and WHO guidance do not contradict the public health evidence on which the Court relied and continues to rely. While the CDC recognizes people over sixty-five years old as among the most vulnerable, CDC guidance also acknowledges that “the older you are, the higher your risk of serious disease.” Groups at Higher Risk of Severe Illness, Centers for Disease Control and Prevention (last updated Apr. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html. Additionally, the WHO, in
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addressing age as a risk factor, concludes: “The risk of severe disease gradually increases with age starting from around 40 years. It’s important that adults in this age range protect themselves and in turn protect others that may be more vulnerable.” Coronavirus Disease 2019 (COVID-19) Situation Report – 51, World Health Organization (Mar. 11, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200311-sitrep-51-covid-19.pdf?sfvrsn=1ba62e57_10.
Accordingly, the Court again holds that Toma’s age puts him at substantial risk of severe illness and/or death from a COVID-19 infection.
2. Disability Toma relies on a wheelchair for mobility. (ECF No. 17, PageID.258.) In granting a temporary restraining order, the Court found that Toma’s limited mobility placed him at an even greater risk of COVID-19 infection than the general detainee population. (ECF No. 29, PageID.637.) Respondent contests the Court’s findings regarding Toma’s mobility, claiming that Toma provided insufficient evidence of a disability and that records show that Toma can walk. (ECF No. 31, PageID.674.) Respondent includes a sick call report from February 28, 2020, which includes a note that “[Toma] does state that he uses a walker at home to get around
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because of his ‘bad’ left knee. Denies any concerns today.” (ECF No. 312, PageID.687.)
Toma responds that he does, indeed, have mobility limitations. He includes a February 26, 2020 medical report from the Monroe County Jail, prepared by Nurse Ashley Konowalski and reviewed by Doctor Nisha Chellem:
55 year old male who sent me a kite saying he has knee swelling and he cannot walk. I called him out for sick call to find that he, in fact, is unable to walk. He explains that it has been this way for 4 days. His assessment is negative for any signs of injury, and he denies any injury or falling. His range of motion is adequate but has less than 25% weight bearing ability. He is having trouble ambulating to the restroom and up to receive meal trays.
(ECF No. 37-3, PageID.841.) The report noted that the facility would provide Toma with a wheelchair, but that “this setting is quite difficult for someone in his condition as it requires quite a bit of mobility.” Id. Toma also provided a March 9, 2020 health assessment, which lists “wheelchair” as a “physical aide.” (ECF No. 37-3, PageID.838.) Toma also attaches as an exhibit his own declaration, in which he declares:
I was often able to walk around using the wheelchair as a walker, but as my time at Calhoun progressed, I found myself more frequently unable to walk and instead I would sit in the
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chair. Due to the limitations on my mobility, I relied on my cellmate and the security to help me with some of my daily tasks. My cellmate would bring me my meals, and would help me into the shower and with getting dressed after I would shower. The security was aware of that he was helping me, and on one occasion gave him free items from the commissary as a way of thanking him for his help. Corrections officers would sometimes help use my wheelchair. I was also placed into a wheelchair accessible room on the first floor of my Pod at Calhoun, which was outfitted with a sink that was set lower than usual for ease of access.
(ECF No. 37-5, PageID.876.)
While the precise nature and scope of Toma’s mobility limitations remain contested, the record supports a finding that Toma has a mobility limitation requiring the use of a wheelchair and assistance at least some of the time. The Court again holds that, were he to return to the Calhoun County Correctional Facility, this limitation would further increase his risk of COVID-19 infection. (ECF No. 29, PageID.637.)
Respondent argues that the Court’s finding does not support granting a preliminary injunction because “merely increasing [Toma’s] risk of exposure does not increase his risk of serious harm, where he has no other underlying condition that increases his risk of serious harm from COVID-19.” (ECF No. 31, PageID.675.) Above, the Court held that
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Toma’s age places him at substantial risk of serious illness from COVID19. A greater risk of exposure therefore indirectly increases the risk that Toma will suffer serious illness. The Court previously found that Toma’s age, mobility limitations, and continued detention placed him at substantial risk of infection and ensuing complications from COVID-19, justifying his immediate release. (ECF No. 29, PageID.639.) The Court again holds that because of Toma’s age and mobility limitations, “any response short of authorizing [Toma’s] release from the Calhoun County Correctional Facility . . . demonstrates deliberate indifference to a substantial risk.” (ECF No. 33, PageID.722–723.) Additionally, the Court notes that Toma’s other medical conditions further warrant injunctive relief.
3. Underlying Health Issues In granting Toma a temporary restraining order, the Court noted that Toma’s hypotension, possible prostate cancer, and a hernia, along with allegedly incomplete medical care, supported the Court’s order. (ECF No. 29, PageID.639.) Respondent argues that the Court erred in finding that Toma’s incomplete medical care further warranted injunctive relief. Respondent properly notes that “the Court incorrectly
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placed the burden on ICE to establish by ‘sufficient evidence,’ that Toma does not require medical monitoring or possible treatment for his alleged conditions.” (ECF No. 31, PageID.675.) Nonetheless, Respondent summarizes and provides documentation of the medical care Toma received while in detention:
The physician who evaluated Toma noted “no signs of a hernia.” (02/28/20 Sick Call, Ex. 2). There are no notations in that visit of unresolved hypotension or prostate issues, and Toma’s blood pressure was normal. Id. Toma was also seen at his request on April 3, 2020, with complaints of back pain. (04/03/20 Sick Call, Ex. 3). His blood pressure was normal and there are no notations of unresolved hypotension or prostate issues. Id.
(ECF No. 31, PageID.668.)
However, Toma has now provided the Court with additional evidence showing his need for ongoing medical treatment beyond that which was provided to him at the Calhoun County Correctional Facility. Toma provides an April 19, 2020 letter from Dr. Ramsay Dass, Medical Director of Internal Medicine & Family Practice at the Oak Park Medical Clinic in Oak Park, Michigan. (ECF No. 38-3, PageID.832.) Dr. Dass has had a doctor-patient relationship with Toma since June 19, 2012. (Id.) According to Dr. Dass, Toma has “chronic obstructive pulmonary disease
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[COPD] secondary to his heavy smoking, and he is still a smoker. He has episodes of shortness of breath, chest pain, bronchitis.” (Id.) COPD places Toma at heightened risk of severe complication and death from COVID19. See People Who Are at Higher Risk of Severe Illness, Centers for Disease Control and Prevention (last updated Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. Dr. Dass also notes that Toma “has an inguinal hernia that requires surgical treatment.” (ECF No. 383, PageID.832.) Regarding Toma’s possible prostate cancer, Dr. Dass writes that “[Toma] was advised to follow up with urology with expectation to have surgery and other treatments for cancer of the prostate and other prostate problems.” (Id.) Dr. Dass concludes that Toma “needs continuous medical modality treatment. He needs to follow up with urology, neurology, psychiatry, psychology, in addition to my services as an internist.” (Id.) Toma’s medical records in detention confirm that while he received some medical treatment, his full medical needs were not met. An October 18, 2019 medical progress note from the Monroe County Jail concludes: “evaluation seems he has chronic issues and this cannot be evaluated in full here.” (ECF No. 37-3, PageID.834.)
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Like Toma’s mobility, the extent of Toma’s medical conditions and access to care are contested. Respondent has not yet had an opportunity to respond to Toma’s newly submitted evidence. The Court will address these issues in more detail when it addresses Toma’s claims on the merits. For now, the Court finds that Toma has significant medical needs, likely including COPD; the Court also finds that these needs are unlikely to be met in full while in ICE custody. The combination of these needs and incomplete care increases the risk that Toma will suffer serious illness and/or death from a COVID-19 infection. While Toma’s age and mobility limitations alone were sufficient for Toma to show a likelihood of success on the merits of his Fifth Amendment deliberate indifference claim, his medical needs further warrant granting injunctive relief.
C. Public Interest Respondent did not address the balance of equities or public interest in her response to the Court’s order to show cause as to why the temporary restraining order for Petitioner Malam should not be converted into a preliminary injunction. (See ECF No. 33, PageID.703.) Accordingly, in granting a preliminary injunction for Petitioner Malam, the Court adopted its reasoning from its April 6, 2020 Amended Opinion
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and Order, in which it granted Petitioner Malam a temporary restraining order. (Id.).
Here, Respondent argues that the public interest favors Toma’s continued detention because granting a preliminary injunction would render the detention of any person during the COVID-19 pandemic unconstitutional. Respondent claims that
[g]ranting the relief sought by Toma, who has no high-risk factors for COVID-19, would, in effect, hold that it is unconstitutional for ICE to detain any individuals during this current health crisis. The disruptive effect of an order releasing Toma could long survive the COVID-19 pandemic, and could serve as precedent for releasing many non-citizens slated for removal, some with violent criminal backgrounds, back into the general public. This type of burden and attendant harm, and its potential impact on ICE operations nationwide, is too great to be permissible at this preliminary stage.
(ECF No. 31, PageID.682.) Respondent’s concern is unwarranted. The Court’s ruling in this
case is limited to a single individual, for whom the Court finds injunctive relief warranted because his age, mobility limitation, and medical conditions and needs place him at high risk for an adverse outcome, including death, if he were to contract COVID-19. Neither party has
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raised or addressed the issue of whether a noncitizen’s potential danger to the community is relevant to Fifth Amendment or injunctive relief analysis. Additionally, the Court’s decision is not binding on any future court. See Camreta v. Greene, 563 U.S. 692, 709 (2011) (internal citation omitted) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”).
Accordingly, the Court adopts its April 6, 2020 reasoning (ECF No. 23) with respect to the balance of equities and public interest. Toma has shown that these factors weigh in favor of granting a preliminary injunction.
The Court finds that Toma continues to show that he would face a high likelihood of irreparable harm absent a preliminary injunction, a significant likelihood of success on the merits, and that the balance of equities and public interest favor his release. The Court will convert its temporary restraining order into a preliminary injunction.
IV. Conclusion
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For the reasons stated above, the Court GRANTS a preliminary

injunction mandating Plaintiff-Intervenor Amer Toma’s continued

release.

Toma remains subject to the following restrictions: he is subject to

a total of fourteen days of home quarantine; he must comply with all

Michigan Executive Orders; and he must appear at all hearings

pertaining to his immigration proceedings. Respondent may impose other

reasonable nonconfinement terms of supervision. Respondent is further

RESTRAINED from arresting Toma for civil immigration detention

purposes until the State of Emergency in Michigan (related to COVID-

19) is lifted or until further Court Order stating otherwise.

IT IS SO ORDERED.

Dated: April 22, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 22, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

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 Case 5:20-cv-10829-JEL-APP ECF No. 127 filed 06/28/20 PageID.4172 Page 1 of 66

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner-Plaintiff,

Case No. 20-10829

and

Judith E. Levy

Qaid Alhalmi, et al.,

United States District Judge

Plaintiff-Intervenors, Mag. Judge Anthony P. Patti

v.

Rebecca Adducci, et al.,

Respondent-Defendants. ________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AS PRELIMINARY INJUNCTION [98]
Plaintiffs Waad Barash, Lench Krcoska, Sergio Perez Pavon,
Yohandry Ley Santana, Johanna Whernman, and William Whernman
are the fourth group of civil immigration detainees in this case to seek

emergency injunctive relief finding their continued detention at the

Calhoun County Correctional Facility unconstitutional and requiring

their immediate release because of the threat posed by the COVID-19

Case 5:20-cv-10829-JEL-APP ECF No. 127 filed 06/28/20 PageID.4173 Page 2 of 66
pandemic.1 In this opinion, the Court will evaluate the continued threat COVID-19 poses to medically vulnerable detainees, the adequacy of current precautions taken by the Calhoun County Correctional Facility, and the legal standard applicable to Plaintiffs’ claims. The Court finds that COVID-19 continues to create a high risk of irreparable injury to Plaintiffs absent an injunction. Because Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim and the public interest favors their release, the Court grants Plaintiffs’ motion. BACKGROUND
On June 2, 2020, Plaintiffs moved to amend their joint proposed class action petition for a writ of habeas corpus and complaint for injunctive relief to include these six Plaintiffs as named putative class representatives. (ECF No. 91.) After the Court granted Plaintiffs leave to
1 Plaintiff Leonard Baroi filed this motion alongside the six other named Plaintiffs. In their reply brief, Plaintiffs informed the Court that ICE had removed Baroi. (ECF No. 117, PageID.4020.) On June 22, 2020, counsel for Defendants informed the Court by email that ICE was unable to effectuate Baroi’s removal and that he is currently detained in Texas awaiting the rescheduling of his removal. Because Baroi is no longer detained at the Calhoun County Correctional Facility and Plaintiffs’ motion seeks as relief only immediate release from the Calhoun County Correctional Facility, the Court denies as moot Plaintiffs’ motion with respect to Baroi. Should Plaintiffs’ wish to seek additional relief for Baroi, they may seek to amend their complaint or file a separate motion.
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amend on June 5, 2020 (ECF No. 96), Plaintiffs filed this motion for a temporary restraining order. (ECF No. 98.) Defendants responded on June 10, 2020 (ECF No. 101), and Plaintiffs replied on June 15, 2020. (ECF No. 117.)
Each Plaintiff alleges that because of their age and/or underlying medical conditions, they are at heightened risk of a dire outcome from COVID-19.
Waad Barash Plaintiff Waad Barash is fifty-six years old and tested positive for tuberculosis upon arriving at the Calhoun County Correctional Facility. (ECF No. 98, PageID.3368.) Barash has a ten-year history of smoking. (Id. at PageID.3369.) He suffers from hypertension, for which he alleges he has not received medication while in detention. (Id.) Lenche Krcoska Plaintiff Lench Krcoska is fifty-two years old. (Id.) She suffers from rheumatoid arthritis and a heart arrythmia. (Id.) To treat her arthritis, Krcoska’s doctor prescribed her a specific diet, which she alleges she is unable to follow while in detention at the Calhoun County Correctional Facility. (Id.)
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Sergio Perez Pavon Plaintiff Sergio Perez Pavon is thirty-six years old. (Id.) He suffers from type 2 diabetes. (Id.) Since arriving at the Calhoun County Correctional Facility, Perez Pavon has become insulin dependent. (Id. at PageID.3371.) Yohandry Ley Santana Plaintiff Yohandry Ley Santana is thirty-three years old. (Id.) He suffers from asthma, with which he was diagnosed at eight months of age and for which he has been hospitalized numerous times and intubated twice. (Id.) Most recently, Ley Santana was hospitalized in January 2019 with severe bronchitis and allergies. (Id.) Despite requesting both allergy medication and his prescribed inhaler, Ley Santana has been provided neither while at the Calhoun County Correctional Facility. (Id.) Johanna Whernman Plaintiff Johanna Whernman is fifty-seven years old. (Id. at PageID.3372.) She suffers from asthma, for which she uses an inhaler. (Id.) Johanna Whernman has not consistently received her inhaler while at the Calhoun County Correctional Facility. (Id.) She has been
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hospitalized multiple times—most recently in February 2020—due to side effects from her asthma medication. (Id.)
William Whernman Plaintiff William Whernman, son of Plaintiff Johanna Whernman, is twenty-two years old. (Id.) He suffers from asthma, for which he uses an inhaler. (Id.) William Whernman has not consistently received his inhaler while at the Calhoun County Correctional Facility. (Id.) He is clinically obese, with a body mass index of 30.85. (Id.) LAW AND ANALYSIS I. Jurisdiction In its April 6, 2020 Opinion and Order, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 2441. (ECF No. 23, PageID.535.) In the alternative, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at PageID.536.) The Court held that sovereign immunity did not apply (Id. at PageID.544) and that no other statute deprived the Court of jurisdiction. (Id. at PageID.547.) In Wilson, et al. v. Williams, et al., the Sixth Circuit upheld habeas jurisdiction in a similar case, finding that “[b]ecause petitioners seek release from confinement, ‘the heart of habeas corpus,’ . . . jurisdiction is proper under § 2241.” Case
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No. 20-3447, 2020 WL 3056217, at *5 (6th Cir. June 9, 2020) (citing Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)). Plaintiffs’ current motion presents the same jurisdictional questions; Defendants raise no new jurisdictional arguments. With respect to jurisdiction, the Court adopts its April 6, 2020 Opinion and Order (ECF No. 23) in full.
II. Legal Standard Plaintiffs seek a temporary restraining order. (ECF No. 98.) Nonetheless, Plaintiffs gave notice to Defendants and did not seek a ruling before Defendants could respond. A temporary restraining order, which can be issued without notice to the adverse party, is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). Here, because the Defendants are on notice and the Court allowed time for extensive briefing, the Court will treat the motion as one for a preliminary injunction rather than for a temporary restraining order. See Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *3 (E.D. Mich. May 9, 2020) (doing the same). (See also ECF No. 68, PageID.1911.)
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“Preliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Ne. Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
III. Analysis The Court grants Plaintiffs’ motion in part because the Court finds that Plaintiffs face a high risk of irreparable injury absent an injunction,
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Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim, and the public interest favors each Plaintiffs’ release.
A. Irreparable Injury Plaintiffs are likely to experience irreparable injury absent an injunction, both in the form of loss of health or life and in the form of an invasion of their constitutional rights. See Fofana v. Albence, Case No. 20-10869, 2020 WL 1873307, at *10 (E.D. Mich. Apr. 15, 2020) (citing Thakkur v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020)) (“There can be no injury more irreparable than lasting illness or death.”); see also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”). 1. Loss of Health or Life from COVID-19 In seven prior opinions issued both before and after the emergence of confirmed cases of COVID-19 among detainees at the Calhoun County Correctional Facility, the Court held that noncitizen civil detainees faced a high risk of infection from COVID-19. (See ECF Nos. 23 (granting Petitioner Malam TRO), 29 (granting Plaintiff Toma TRO), 33 (converting Malam TRO into preliminary injunction), 41 (converting
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Toma TRO into preliminary injunction); 68 (granting preliminary injunction for Plaintiffs Alhalmi and Cardona Ramirez); 90 (granting preliminary injunction for Plaintiffs Salabarria and Rosales Borboa); Zaya v. Adducci, Case No. 20-10921, 2020 WL 1903172 (E.D. Mich. Apr. 18, 2020) (granting Petitioner Zaya TRO); Zaya v. Adducci, Case No. 2010921, 2020 WL 2487490 (E.D. Mich. Apr. 18, 2020) (converting Zaya TRO into preliminary injunction)). Evaluating the significant body of public health and medical evidence on the record regarding the pandemic, the Court repeatedly concluded that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as [Plaintiffs] within the CCCF facility.” (ECF No. 23, PageID.559; ECF No. 68, PageID.1914.) In each case, the Court ultimately found that the movants faced a high risk of irreparable injury absent an injunction.
In considering whether these Plaintiffs who are still detained at the Calhoun County Correctional Facility similarly face a high risk of irreparable injury, the Court must evaluate whether Plaintiffs have a
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heightened risk of a dire outcome from COVID-19. The Court must also evaluate the current severity of the COVID-19 pandemic and the conditions at the Calhoun County Correctional Facility, including the extent to which any failure by Calhoun County Correctional Facility to implement precautionary measures increases the risk to Plaintiffs. Only by evaluating the totality of the circumstances can the Court properly assess the nature and degree of the risk to Plaintiffs.
a. Plaintiffs’ risk of dire outcome from COVID-19 In its most recent opinion in this case, the Court summarized its earlier decisions as, in concert, . . . holding that the presence of a risk factor for severe illness and/or death translates a high risk of infection into a high risk of irreparable injury and a substantial risk of serious harm such that no conditions of confinement at the Calhoun County Correctional Facility can ensure a civil detainee’s reasonable safety.
(ECF No. 90, PageID.2711.) The parties do not contest that each Plaintiff seeking relief in this motion is at heightened risk of a dire outcome from COVID-19.2 Each Plaintiff has at least one condition that appears on the
2 Defendants contest the risk of COVID-19 only as to Plaintiff Baroi. Defendants argue in their response that Plaintiff “Bar[]oi cannot establish that he has a substantial risk of serious harm based on primary hypertension and a history
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CDC’s list of risk factors for severe illness from COVID-19 or that the

Court has previously concluded constitutes a risk factor. See People Who

Are At Higher Risk For Severe Illness, Centers for Disease Control and

Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/people-at-higher-risk.html (last visited June 25, 2020).

Plaintiff Barash is fifty-six years old and has unmedicated hypertension,

active or latent tuberculosis, and a ten-year history of smoking. (ECF No.

98, PageID.3368–3369.) Plaintiff Krcoska is fifty-two years old and

suffers from rheumatoid arthritis—an autoimmune disease—and a heart

arrythmia. (Id. at PageID.3370.) Plaintiff Perez Pavon suffers from type

2 diabetes, because of which he is insulin dependent. (Id. at

PageID.3370–3371.) Plaintiff Ley Santana has asthma (Id. at

PageID.3371), which Plaintiffs’ uncontested medical expert has classified

as “moderate persistent.” (ECF No. 99, PageID.3534.) Plaintiffs William

and Johanna Whernman similarly have asthma, which Plaintiffs’

uncontested medical expert has classified as “moderate to severe

persistent asthma. (ECF No. 99, PageID.3536–3537.) Additionally,

of smoking 1-2 cigarettes a day for 2 years.” (ECF No. 101, PageID.3578.) Because Plaintiff Baroi is no longer detained at the Calhoun County Correctional Facility, his request for injunctive relief is moot.
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Plaintiff Johanna Whernman shows symptoms that meet the diagnostic criteria for hypertension. (ECF NO. 99, PageID.3536.) Dr. Katherine C. McKenzie, faculty member at the Yale School of Medicine, Director of the Yale Center for Asylum Medicine, and attending physician at the Yale School of Medicine and Yale New Haven Hospital, reviewed the medical records and related declarations of each Plaintiff in this case. (ECF No. 99.) Based on the above characteristics and health conditions, Dr. McKenzie concluded that “the seven detainees in this report are at high risk of severe illness or death from COVID-19.” (ECF No. 99, PageID.3536.)
Because Defendants do not contest Dr. McKenzie’s conclusion, the Court finds that each Plaintiff is at high risk of severe illness and/or death should they contract COVID-19.
b. Severity of the pandemic Plaintiffs argue that the pandemic continues to pose a high risk of infection to noncitizen immigration detainees held in communal confinement, such that “Plaintiffs cannot be safe at Calhoun” and “only their immediate release will vindicate their Due Process rights.” (ECF NO. 98, PageID.3381.) Defendants argue that any previously recognized
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risks remain unrealized while future risks are sufficiently mitigated so
as to justify Plaintiffs’ continued detention:
“[Plaintiff’s] fear is based on the alleged possibility of a “tinderbox scenario,” where there could be a rapid and uncontrolled outbreak of COVID-19 at Calhoun based on the nature of a congregate setting. Petitioners cite to outbreaks that have occurred in Michigan and other states, but ignore the many congregate settings where it has not occurred, despite being months into a pandemic and Michigan having moved past the peak of its cases. The facts are that Calhoun has not experienced an outbreak, has implemented significant precautions to reduce the risk of exposure, and having recently tested roughly a third of its population, only 2% tested positive, and those were asymptomatic cases.”
(ECF No. 101, PageID.3567.)
The Court cannot rely on its earlier risk analysis to find the same
risk to Plaintiffs today, given that approximately one month has passed
since the Court’s most recent decision in this case and the contours of the
COVID-19 pandemic change often and significantly. Evaluating the new
evidence on the record, the Court finds that COVID-19 remains an
extraordinary threat to those both in and outside of communal detention
at the Calhoun County Correctional Facility.
Globally and locally, COVID-19 continues to spread. A June 1, 2020
World Health Organization situation report records 6,057,853 cases and 13

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371,166 deaths globally. (ECF No. 98-4, 2020). As of that date, the United States had reported 1,734,040 total confirmed cases, with 102,400 deaths. (Id.) As of June 25, 2020, the state of Michigan reported 62,306 COVID-19 cases with 5,887 confirmed COVID-19-related deaths. Coronavirus, Michigan.gov, https://www.michigan.gov/coronavirus/ (last updated June 25, 2020). Of 8,858 detainees in ICE detention tested as of June 19, 2020, 2,521 detainees tested positive, including five at the Calhoun County Correctional Facility (Defendants note in a supplemental declaration that as of June 17, 2020, a sixth detainee tested positive (ECF No. 120, PageID.4099)) and sixty-three total in detention centers under the jurisdiction of the Detroit Field Office. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (last updated June 25, 2020). There are currently 871 confirmed COVID-19 positive detainees in ICE custody. Id. An additional forty-five ICE detention center employees had tested positive as of June 15, 2020. Id.
The term “second wave” is now vernacular, though many public health experts insist the United States remains in the midst of its first wave of the virus. As Plaintiffs allege, “states around the country have
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begun to see new highs in daily infection rates as they reopen, . . . multiple waves of infections are predicted, and . . . the course of the pandemic in prisons and jails differs from that in society at large.” (ECF No. 117, PageID.4023.) Dr. Anthony Fauci, the chief medical advisor for the White House coronavirus task force, anticipates a spike of cases “in closed environments like nursing homes, prisons and factories” as states continue to reopen. Donald G. McNeil Jr., As States Rush to Reopen, Scientists Fear a Coronavirus Comeback, NY Times (May 11, 2020), https://www.nytimes.com/2020/05/11/health/coronavirus-second-waveinfections.html. Plaintiffs attach to their reply the declaration of Gregg Gonsalves, Assistant Professor in Epidemiology of Microbial Diseases at the Yale School of Medicine, Associate Professor of Law at Yale Law School, and 2018 recipient of a MacArthur Fellowship from the John D. and Catherine T. MacArthur Foundation. (ECF No. 117-4.) Drawing on over three decades of public health experience researching epidemic diseases with a focus on the use of quantitative models to improve disease response, Gonsalves warns that “even in areas where it has been possible to successfully bend the curve, this does not mean that the deadliest part of the pandemic is past. . . . There is a strong likelihood that the COVID-
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19 epidemic will return in at least one wave, rather than be eradicated completely after an initial burst.” (Id. at PageID.4046.) Gonsalves quickly discredits the claim that a temporary, localized reduction in infections renders continued precautionary measures unnecessary: “A dramatic relaxation of social distancing just because the curve had bent would be akin to closing an umbrella during a rainstorm because one has not yet gotten wet.” (Id.) Gonsalves concludes that “relaxed social distancing, seasonality, and immunity that weakens over time will likely produce at least one serious future wave of COVID-19 infections and deaths, if not more.” (Id. at PageID.4047.)
Of particular relevance to Plaintiffs, Gonsalves articulates COVID19 concerns specific to conditions of communal confinement: “It will take longer to combat the pandemic in jails and prisons” (Id. at PageID.4048); “[j]ails and prisons can serve as reservoirs of COVID-10” (Id.); “[j]ails and prisons will serve as accelerants during any future wave” (Id. at PageID.4049); and “[r]educing these risks requires decreasing jail and prison populations, particularly when it comes to individuals at highest risk from COVID-19.” (Id. at PageID.4050.) Defendants do not rebut these conclusions but instead argue only that “Calhoun has implemented
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precautions that reduce the opportunity for introduction of COVID-19 to the facility and those precautions have evolved over the course of the pandemic.” (ECF No. 101, PageID.3572.)
The Court will address below the extent to which current precautionary measures mitigate the risk of COVID-19 to Plaintiffs, but to suggest that the threat from COVID-19 has diminished mischaracterizes the nature of the pandemic as understood by public health and medical experts. The Court finds a continued high risk of COVID-19 infection, particularly for Plaintiffs who are living in communal confinement.
c. Impact of precautionary measures While Plaintiffs argue that no conditions of confinement satisfy constitutional constraints during the COVID-19 pandemic, Plaintiffs’ current conditions of confinement bear on the extent to which Plaintiffs face a high risk of irreparable injury absent an injunction. Since this litigation began, Defendants have insisted that, in the absence of a significant outbreak, precautionary policies issued by ICE and adopted by the Calhoun County Correctional Facility sufficiently mitigate the risk of COVID-19 to detainees: “Petitioner is not at an
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immediate risk of harm. There are no cases of COVID-19 at CCDC, and 25 confirmed cases in the surrounding county” (ECF No. 11, PageID.184) (April 3 Response); “[t]here are no suspected cases of COVID-19 at CCDC, which tends to suggest the measures are reasonably effective. . . . The possibility that COVID-19, by nature of its asymptomatic transmission, could enter CCDC, and make its way to Malam, is simply insufficient under Helling and Wooler to establish a substantial risk of exposure” (ECF No. 30, PageID.653) (April 10 Response); “the facts are that Calhoun continues to have zero confirmed cases of COVID-19 and has concrete plans in place to reduce the risk of exposure and spread.” (ECF No. 52, PageID.1527) (April 29 Response).
However, the—according to Defendants—improbable soon occurred. On May 11, 2020, counsel for Defendants informed the Court by email that one detainee at the Calhoun County Correctional Facility tested positive for COVID-19. On May 14, 2020, counsel for Defendants informed the Court that another detainee—one who had been in contact with the first detainee to test positive—also tested positive. On May 23, 2020, voluntary testing of fifty detainees, forty-seven inmates, and sixteen staff members revealed two additional positive detainees, raising
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the total number of positive cases to five (somewhere along the line, a third detainee tested positive (see ECF No. 101, PageID.3572)). On June 17, 2020, the Court learned from Defendants’ supplemental declaration that a sixth detainee has tested positive. (ECF No. 120, PageID.4099.) Defendants seek to minimize the scope of the outbreak at Calhoun: “In the time that the state of Michigan has seen nearly 65,000 confirmed cases, Calhoun has seen only [6].” (ECF No. 101, PageID.3567). However, Defendants’ attempt to contrast these infection rates reveals the gravity of the situation. 65,000 Michiganders represent 0.65 percent of the state’s population of 9,986,857, see QuickFacts Michigan, United States Census Bureau, https://www.census.gov/quickfacts/MI ((last visited June 23, 2020), whereas the six confirmed cases at the Calhoun County Correctional Facility constitute 1.4 percent of the center’s 349 inmates and detainees—a disease prevalence more than twice that of the state as a whole. Considering Michigan’s COVID-19 statistics, Governor Gretchen Whitmer recently extended the State of Emergency until July 16. Governor Whitmer Extends State of Emergency to Continue Protecting the Health and Safety of Michiganders, Michigan.gov (June 18, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499-532360--
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,00.html. By this measure, the Calhoun County Correctional Facility faces a similar, if not greater, state of emergency.
Defendants stand by the precautionary measures in place at the Calhoun County Correctional Facility. They emphasize that ICE guidance tracks CDC recommendations (ECF No. 101, PageID.3570) and that “Calhoun’s success is due in part to its strict quarantine procedures.” (Id. at PageID.3573.) Defendants provide the declaration of James Jacobs, Assistant Field Officer Director with the Detroit Field Office of Enforcement and Removal Operations. (ECF No. 101-8, PageID.3628.) Assistant Director Jacobs explains that “[s]ince the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.” (Id. at PageID.3630.) He lists the precautionary measures adopted by ICE and employed by the Calhoun County Correctional Facility, including mandatory quarantine for all arriving detainees; required use of masks by staff involved in transport, intake, and booking; testing of detainees consistent with CDC and Michigan Department of Health and Human
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Services guidelines; symptom screening of staff and vendors upon entering the facility; education for staff and detainees on proper hygiene; daily cleaning of cells and hourly cleaning of common areas using a disinfectant; continual access to antibacterial soap for detainees and hand sanitizer for staff; a reduced facility population; education on social distancing; and review of the detainee population for risk of dire outcomes from COVID-19. (ECF No. 101-8.) Courtesy of the Michigan National Guard, the Calhoun County Correctional Facility recently tested fifty detainees, forty-seven inmates, and sixteen staff members (each of whom volunteered for testing), identifying two cases of COVID19 in the process. (ECF No. 101, PageID.3573.) In a supplemental declaration, Assistant Director Jacobs notes that as of June 11, 2020, the Calhoun County Correctional Facility has been testing all incoming detainees and inmates for COVID-19 upon completion of a mandatory 14day quarantine before placing them in the general population. (ECF No. 120, PageID.4099.)
The Court recognizes that Defendants and the Calhoun County Correctional Facility have done much to prevent the spread of COVID19. However, the public health evidence on the record continues to
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demonstrate the myriad ways in which precautionary measures at the

Calhoun County Correctional Facility fail to sufficiently mitigate the

pandemic’s risk to medically vulnerable detainees. Once again, Plaintiffs

provide a declaration from Dr. Homer Venters, a physician, internist and

epidemiologist with over a decade of experience in providing, improving,

and leading health services for people in incarceration. (ECF No. 98-3.)

Dr. Venters reviewed the significant body of evidence both on the record

and produced through discovery (Id. at PageID.3413–3414) identifying

several areas in which Defendants’ response falls short. The Court will

discuss each area in turn.

i. Social Distancing

Adequate social distancing is impossible at the Calhoun County

Correctional Facility. As the CDC defines it, “[s]ocial distancing is the

practice of increasing the space between individuals and decreasing the

frequency of contact to reduce the risk of spreading a disease (ideally to

maintain at least 6 feet between all individuals, even those who are

asymptomatic).” Interim Guidance on Management of Coronavirus

Disease 2019 (COVID-19) in Correctional and Detention Facilities,

Centers

for

Disease

Control

and

Prevention,

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https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
detention/guidance-correctional-detention.html (last reviewed May 7,
2020). The CDC calls proper social distancing “a cornerstone of reducing
transmission of respiratory diseases such as COVID-19.” Id.
Defendants write,
There are specific measures implemented at Calhoun to increase social distancing. Calhoun is not overcrowded and currently houses 349 inmates and detainees, though it has a capacity to house 640. . . . None of the Petitioners named as part of this motion are in a housing unit that is at capacity. Detainees are educated on the need for social distancing and practices that reduce exposure. . . . In accordance with ICE Detained Docket Review guidance, ICE reviews detainees who are considered high risk under CDC guidelines to determine if continued detention is appropriate.
(ECF No. 101, PageID.3575–3576.) Defendants’ insistence that Calhoun
is not overcrowded is inadequate: population reduction is important
during a pandemic because a reduced population would allow detainees—
even those who are asymptomatic—to remain six feet apart at all times.
Whether the Calhoun County Correctional Facility has a detainee
population of three or 300, it fails to meet public health standards if those
detainees cannot socially distance themselves. And despite Defendants’
efforts, such distancing remains illusory. The record is replete with
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declarations citing continued close quarters and closer contacts: Plaintiff Baroi, prior to his removal, reported that social distancing was impossible due to the facility’s sleeping arrangements (ECF No. 98-3, PageID.3417); Plaintiff Krcoska is housed in a cell with five other detainees, with beds spaced three feet apart (Id.); Plaintiff Perez Pavon shares a cell with six other detainees in bunkbeds, preventing social distancing (Id.); Plaintiff Santana reports being housed in a pod with 46 other detainees. (Id.) Plaintiffs Baroi and Krcoska report that detainees cannot socially distance themselves during meals, as they “eat meals at communal tables” “in such close quarters that their elbows touch.” (Id.) Plaintiff Baroi expressed concern that “similarly close contact occurs in line to receive meals.” (Id.)
Even Plaintiffs who previously had single-cell housing can no longer socially distance. Defendants noted in their response that pending removal, Plaintiffs Johanna and William Whernman both resided in single cells. (ECF No. 101, PageID.3570.) However, Plaintiffs returned to the general population on June 16, 2020. (ECF No. 122, PageID.4123.) Plaintiff Johanna Whernman now shares a cell with a detainee who is currently ill with a high fever and a common space with 46 other
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detainees. (Id.) Plaintiff William Whernman shares a dormitory with 20 to 30 other detainees who sleep in beds spaced 1.5 feet apart. (Id. at PageID.4123.)
Dr. Venters concludes, As a result, while there may be educational posters and signage at Calhoun warning detainees about the importance of social distancing and other measures, they do not address the basic issue that is the physical impossibility, as reflected in the personal recounts of Plaintiffs, for detainees to maintain a six-foot distance from others at all times.
(ECF No. 98-3, PageID.3417.) As one District Court recently analogized, a jail establishing COVID-19 precautions without ensuring adequate social distancing is the equivalent of “a NASCAR driver who spurns a seatbelt and helmet because she plans not to crash.” Savino v. Souza, Case No. 1:20-10617-WGY (D. Mass. June 18, 2020), ECF No. 225.
ii. Testing While the Calhoun County Correctional Facility recently employed testing courtesy of the Michigan National Guard, the overall level of testing does not meet public health standards. The May 23 testing occurred on a voluntary basis: only fifty detainees and forty-seven inmates—roughly one-third of the facility’s population—signed up for
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testing. (ECF No. 101-8, PageID.3631.) On June 13, 2020, the CDC formally recommended testing of all persons in “settings that house vulnerable populations in close quarters for extended periods of time,” including “correctional and detention facilities,” in order to enable “early identification of asymptomatic individuals.” Overview of Testing for SARS-CoV-2, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/testingoverview.html#asymptomatic_without_exposure (last updated June 13, 2020). The CDC further recommends “initial testing of everyone residing and/or working in the setting, [r]egular (e.g., weekly) testing of everyone residing and/or working in the setting, and [t]esting of new entrants into the setting and/or those re-entering after a prolonged absence (e.g., one or more days).” Id. Two days prior to this updated guidance, the Calhoun County Correctional Facility implemented testing of all incoming detainees and inmates. (ECF No. 120, PageID.4099.) While this policy addresses the third recommended precaution, there continues to be no evidence that ICE or the Calhoun County Correctional Facility is considering universal testing of staff and detainees. To the contrary, on May 7, 2020, Defendants explained to the Court in another case that
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“Calhoun does not have plans to implement mandatory COVID-19 testing for all staff and detainees.” Zaya v. Adducci¸ Case No. 20-10921 (E.D. Mich. May 7, 2020), ECF No. 13.
Dr. Venters concludes that until initial and periodic testing is provided for all detainees, inmates, and staff, the Calhoun County Correctional Facility is not following Michigan Department of Health and CDC guidance on testing. (ECF No. 98-3, PageID.3415.) And particularly given that limited testing revealed two additional asymptomatic COVID19 cases, Defendants cannot reasonably assert without universal testing that the current outbreak is limited to only six cases.
iii. Implementation Even where Defendants have imposed precautionary measures, the record before the Court indicates that many of these measures may exist as policy only. Plaintiff Krcoska reports that detainees in his cell go two to three days without soap when their supply runs out; only detainees with more than $15 in their commissary account can afford a personal supply. (ECF No. 98-9, PageID.3511.) Plaintiff Krcoska alleges that the “regular guards that are in Calhoun every day rarely wear masks. They also do not always wear gloves.” (Id.) Plaintiff Yohandry Ley Santana
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similarly alleges that “the staff at Calhoun does not typically wear masks, and they only wear gloves when they come into contact with the detainees.” (ECF No. 98-10, PageID.3515.)
Detainees are also frequently moved throughout the facility in violation of their own quarantine policy. Plaintiffs provide a declaration analyzing daily housing reports produced by Defendants from April 15, 2020 to May 15, 2020. (ECF No. 98-5.) Plaintiffs identified eighteen detainees who did not remain in a single quarantine area for fourteen days prior to being transferred to other areas of the facility and 20 detainees who were not placed into a designated quarantine area upon intake. (Id. at PageID.3493.) Two detainees were moved from nonquarantine areas into quarantine areas and then back again within a single week. (Id. at PageID.3494.) During the month that Defendants produced housing reports, detainees were transferred between pods at least 250 times. (Id.) Dr. Venters concludes that these policy failures represent “a lack of adherence to basic CDC guidelines regarding infection control in detention settings.” (ECF No. 98-3, PageID.3417.)
Despite this being Dr. Venters’ third supplemental declaration pinpointing disparities between Defendants’ precautionary measures
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and a sound public health response, Defendants have yet to provide the Court with any public health or medical evidence—other than references to CDC standards—defending the existing precautionary measures as being either sufficient or sufficiently implemented. Because each Plaintiff is at heightened risk of a dire outcome from COVID-19, the risk of COVID-19 infection remains high, and precautionary measures at the Calhoun County Correctional Facility do not mitigate the risk to Plaintiffs, the Court finds that Plaintiffs are at a high risk of irreparable injury in the form of loss of health or life absent an injunction.
2. Violation of Constitutional Rights Plaintiffs have additionally shown a high risk of irreparable injury in the form of infringement on their Fifth Amendment rights. Plaintiffs argue that “Defendants have violated, and continue to violate, Plaintiffs’ constitutional Due Process rights by detaining them in conditions that in no way ‘reasonably relate[] to a legitimate governmental purpose.’” (ECF No. 98, PageID.3384–3385 (citing Bell v. Wolfish, 441 U.S. 520, 539 (1979)).) The finding that a constitutional violation is likely establishes irreparable harm. See Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired,
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irreparable injury is presumed.”); Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)); see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegations of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm). Below, the Court finds Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)
B. Likelihood of Success on the Merits Plaintiffs bring a claim for “Violation of Fifth Amendment Right to Substantive Due Process: Impermissible Punishment and Inability to Ensure Reasonable Safety for the Medically Vulnerable.” (ECF No. 87, PageID.3346.) The heart of Plaintiffs’ claim is the allegation that “there are no conditions of confinement that would permit the safe detention (or re-detention) of [medically vulnerable detainees].” (Id.) Accordingly, the Court understands Plaintiffs’ lawsuit as challenging their conditions of
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confinement in civil detention for the duration of the COVID-19 pandemic. As discussed below, this characterization places Plaintiffs’ claim in the gray area between two distinct threads of legal precedent.
1. Legal Standard As civil detainees, Plaintiffs are protected by the Fifth Amendment’s Due Process Clause. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Daniels v. Woodside, 396 F.3d 730, 735 (6th Cir. 2005). In Bell v. Wolfish, the Supreme Court analyzed the scope of Fifth Amendment Protections as they pertain to civil detainees. 441 U.S. 520 (1979). The Court held that [i]n evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.
Id. at 535. To determine whether a condition or restriction constitutes punishment, the Court held that “absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on ‘whether an alternative purpose to
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which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’” Id. at 538. Accordingly, the Court concluded that
if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Id. at 539. In Youngberg v. Romeo, the Supreme Court applied Bell to a conditions of confinement claim brought by a person with an intellectual disability in state custody. 457 U.S. 307 (1982). In Block v. Rutherford, the Supreme Court again affirmed Bell’s application to conditions of confinement claims and applied the Bell framework to a pretrial detainee’s claim that a policy prohibiting contact visits violated the Fourteenth Amendment. 486 U.S. 576 (1984).
Where the Fifth Amendment protects civil detainees from punishment, the Eighth Amendment protects post-conviction criminal detainees from cruel and unusual punishment. In Estelle v. Gamble, the Supreme Court held that deliberate indifference to the serious medical
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needs of prisoners entailed “unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” 429 U.S. 97, 104. (1976). In Helling v. McKinney, the Supreme Court applied the deliberate indifference standard to a prisoner’s claim regarding prison conditions. 509 U.S. 25 (1993). A prisoner challenged his exposure to second-hand smoke as being in violation of the Eighth Amendment. The Court, applying Estelle’s deliberate indifference test, reiterated that “it is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” 509 U.S. 25, 30–31. In Farmer v. Brennan, the Court again applied Estelle’s deliberate indifference test to claims challenging conditions of confinement, finding that the Eighth Amendment mandates “humane conditions of confinement” and that “prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” 511 U.S. 825, 832 (1994) (internal citations omitted). The Court explained that the deliberate indifference test requires a subjective and objective component. Id. at 834.
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Although the Eighth Amendment does not apply to civil detainees, the Sixth Circuit has imported much of the Supreme Court’s deliberate indifference analysis into its adjudication of Fifth and Fourteenth Amendment claims by civil and pretrial detainees. In Thompson v. Cty. of Medina, the Sixth Circuit acknowledged Bell’s holding that, under the Fourteenth Amendment, “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” 29 F.3d 238, 242 (6th Cir. 1994) (citing Bell, 441 U.S. 520 at 535). The Court then stated that “such detainees are thus entitled to the same Eighth Amendment rights as other inmates” and proceeded to apply only Eighth Amendment analysis to pretrial detainees’ claims challenging the conditions of their confinement. Id. In Spencer v. Bouchard, the court addressed the Fifth, Eighth, and Fourteenth Amendments’ respective prohibitions on punishment. 449 F.3d 721, 727 (6th Cir. 2003.) Citing to Bell, the court recognized that the Fifth and Fourteenth Amendments “provide[] similar if not greater protections than the Cruel and Unusual Punishments Clause” but wrote—without further explanation—that “[f]or the sake of simplicity, we refer to the Eighth Amendment in the following discussion.” Id. In Villegas v. Metro. Gov’t, the Sixth Circuit
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held that “[p]retrial detainee claims, though they sound in the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment . . . are analyzed under the same rubric as Eighth Amendment claims brought by prisoners” because “the concept underlying the Eighth Amendment is nothing less than the dignity of humankind.” 709 F.3d 563, 568 (6th Cir. 2013).
This Court has employed a similar approach in order to meet the demands of urgent litigation. The Court issued its first injunction in this case on April 5, 2020, six days after Petitioner Malam first filed a motion for a temporary restraining order. (ECF No. 22.) The Court relied on the factual similarities between this case and Helling v. McKinney, in which the Supreme Court addressed a prisoner’s claim that second-hand smoke exposure violated his Eighth Amendment rights. (Id. at PageID.519.) The Court also looked to Basank v. Decker, an opinion from the Southern District of New York and one of the first judicial writings on the constitutionality of civil detention during the novel coronavirus pandemic. Case No. 20-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020). In part because both Helling and Basank applied a deliberate indifference standard, the Court did the same. However, the Court gave
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passing reference to Bell, writing that “Petitioner’s continued detention cannot ‘reasonably relate[] to any legitimate government purpose.’” (ECF No. 22, PageID.523.)
The Sixth Circuit does not use a deliberate indifference framework to analyze every Fifth or Fourteenth Amendment detention claim. The Sixth Circuit has applied Bell’s punishment standard, without reference to deliberate indifference, to claims involving excessive force, see U.S. v. Budd, 496 F.3d 517, 529 (6th Cir .2007), use of solitary confinement, see J.H. v. Williamson Cty., 951 F.3d 709, 717 (6th Cir. 2020), and the transfer of psychiatric detainees, see Turner v. Stumbo, 701 F.2d 567, 571 (6th Cir. 1983).
Supreme Court precedent helps to explain the application of varying legal standards to claims brought by civil detainees. In Deshaney v. Winnebago Cty. Dep’t of Social Servs., the Court cited to Youngberg— a Due Process Clause case—and Estelle—an Eighth Amendment case— before concluding that, “[t]aken together, [these precedents] stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and
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general well-being.” 489 U.S. 189, 199–200 (1989). Deshaney articulated a more general duty to care that exists in both civil and criminal detention: “The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Id. at 200.
Ultimately, Sixth Circuit precedent supports finding that the Fifth and Eighth Amendment protections are coextensive—justifying the application of a deliberate indifference test—and distinct—requiring a punishment standard. In a table decision, the Sixth Circuit applied Bell to conditions of confinement claims by pretrial detainees. Gay Inmates of Shelby Cty. Jail v. Barksdale, 819 F.2d 289, 1987 WL 37565 (6th Cir. June 1, 1987) (table decision). The court held that “[t]he conditions of confinement of convicted inmates are evaluated under an eighth amendment standard, but a somewhat different standard applies to pretrial detainees because, ‘under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.’” Id. at *2. The court concluded that
[s]ince this is a class action in which the majority of the members of the class are presumptively pretrial detainees, we
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must examine the inmate classification procedures and the conditions of detention, as they appear from the record, in light of standards established in Wolfish to determine whether plaintiffs' constitutional rights are being violated.
Id. In contrast, the court in Ruiz-Bueno v. Scott recognized a perceived equivalency between the two standards. 639 F. App’x 354 (6th Cir. 2016). Addressing a pretrial detainee’s claim that the conditions of his confinement fell below the minimal standard of decency, the court held that “[Due Process] rights encompass the Eighth Amendment rights of prisoners. . . . Thus, Supreme Court precedents governing prisoners' Eighth Amendment rights also govern the Fourteenth Amendment rights of pretrial detainees.” Id. at 359. In other instances, the court has not addressed the question at all. The court wrote in Leary v. Livingston Cty. that “[w]hile there is room for debate over whether the Due Process Clause grants pretrial detainees more protections than the Eighth Amendment does, . . . we need not resolve that debate here.” 528 F.3d 438, 443 (6th Cir. 2008).
The Sixth Circuit is not the only circuit to suggest ambiguity on when and how punishment and deliberate indifference standards apply to claims under the Fifth and Fourteenth Amendments. In Hare v. City
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of Corinth, the Fifth Circuit analyzed the “peripatetic route” of its efforts to sort out those precise questions. 74 F.3d 633, 643 (5th Cir. 1996). The court concluded that “the Bell test retains vitality only when a pretrial detainee attacks general conditions, practices, rules, or restrictions of pretrial confinement. When, by contrast, a pretrial detainee's claim is based on a jail official's episodic acts or omissions, the Bell test is inapplicable, and hence the proper inquiry is whether the official had a culpable state of mind in acting or failing to act.” Id.
For now, the Court looks to the parties for their interpretation of this legal landscape, and they interpret Sixth Circuit precedent as supporting dueling frameworks for the classification of the pending claims. Despite excellent briefing from both sides and the submission of an amicus brief, the Court cannot discern a universal rule to govern all Fifth Amendment claims. For the reasons set forth below, the Court makes the limited decision that claims challenging the conditions of confinement in civil detention are governed by the Bell punishment test.
Defendants argue that civil detainees’ claims may be sorted using an action/inaction binary. “Since Bell, the Sixth Circuit has drawn a distinction among pretrial detainee claims challenging the government’s
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failure to protect those in its custody, which are evaluated under a deliberate indifference standard, and challenges to affirmative acts of prison officials, which are evaluated under Bell’s punishment standard.” (ECF No. 80, PageID.2372.) Defendants rely on Roberts v. City of Troy, where the Sixth Circuit upheld a jury instruction on deliberate indifference for a pretrial detainee’s due process claim alleging a failure “to promulgate and enforce procedures to identify potential suicides and prevent their occurrence.” 773 F.2d 720, 722 (6th Cir. 1985). Roberts interpreted Bell as “deal[ing] with actions rather than the failure to act,” but further elaborated that
if we transpose the Bell v. Wolfish standard to failures to act, we would also arrive at a deliberate indifference requirement. If a failure to act is reasonably related to a legitimate governmental objective, the failure to act cannot have the purpose of punishment unless the failure to act was deliberate. Bell v. Wolfish requires an intent to punish.
Id. at 726. Roberts does not support Defendants’ proposed framework because
it misconstrues Bell in two critical ways. First, Bell involved a challenge to “numerous conditions of confinement,” some of which could be articulated as government action (improper searches), some of which
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could be articulated as a failure to act (overcrowded conditions), and some of which could be both an act and an omission (an imposition of undue length of confinement is a failure to grant release, while employing insufficient staff is a failure to hire additional employees). Bell, 441 U.S. at 527. Plaintiffs challenge the fact of their confinement, which is defined by a similar array of actions and inactions. Moreover, Deshaney acknowledges that government action is always present in Fifth and Fourteenth Amendment cases: “In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.” 489 U.S. at 200. Second, Bell does not require an explicit intent to punish. Although demonstrating intent was one way in which a plaintiff could succeed on the merits of a Fifth Amendment claim, Bell also recognized that “[a]bsent a showing of an expressed intent to punish on the part of detention facility officials,” a plaintiff may nonetheless show that a restriction or condition is not rationally connected or is excessive in relation to a legitimate government purpose. Id. at 538.
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Plaintiffs proposed approach similarly fails to provide a generally applicable rule this Court can apply. Plaintiffs argue that the Sixth Circuit distinguishes among claims based on the nature of the claim in question: “conditions claims have been evaluated under the punishment test and medical claims under deliberate indifference.” (ECF No. 82, PageID.2431.) Plaintiff’s illustrative examples fit this mold: in Turner, the Sixth Circuit applied a punishment test to a conditions of confinement claim, 701 F.2d at 568, 572–73, and in J.H. v. Williamson Cty., the court applied a punishment test to a claim challenging the use of solitary confinement, 951 F.3d 709, 717 (2020); in Villegas, 709 F.3d at 568–69, and J.H., 951 F.3d at 722 –23, the court applied a deliberate indifference to medical claims. However, in Wilson v. Seiter, the Supreme Court held that “the medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates.” 501 U.S. 294, 304 (1991). Plaintiffs’ proposed categories thus blur at their edges, as at least some medical care claims may also be construed as conditions of confinement claims.
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On May 18, 2020, with the Court’s leave, Rights Behind Bars and the Roderick & Solange MacArthur Justice Center filed an amicus brief in support of Plaintiffs on the issue of the punishment and deliberate indifference standards. (ECF No. 81.) Unlike the parties, amici did not propose a generally applicable rule; instead, they argued only that the punishment test is the appropriate standard for this case. Amici argue that Youngberg v. Romero is dispositive here. 457 U.S. 307 (1982). In Youngberg, the Supreme Court, addressing a conditions of confinement claim brought by a person with an intellectual disability in civil custody, held it was legal error for the court to instruct the jury that an Eighth Amendment standard applied. 457 U.S. at 325.
The Court agrees with amici. In Youngberg, the Court held that civil detainees “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Cf. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).” Id. at 322. By recognizing an Eighth Amendment jury instruction as legally erroneous and contrasting its holding with Estelle, Youngberg stands for the proposition that a
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deliberate indifference framework does not apply to conditions of confinement claims brought by civil detainees.
More recent Supreme Court precedent affirms this conclusion. In Kingsley v. Hendrickson, the Supreme Court addressed the legal standard that applied to a pretrial detainees’ excessive force claim under the Fourteenth Amendment’s Due Process Clause. 135 S. Ct. 2466 (2015). The Court applied Bell to hold that the plaintiff need only show that the use of force was objectively unreasonable. Id. at 2470. Although Kingsley did not address a conditions of confinement claim, it affirmed the application of Bell to such claims: “The Bell Court applied this latter objective standard to evaluate a variety of prison conditions, including a prison's practice of double-bunking.” Id. at 2474.
Kingsley also explicitly rejected the use of Eighth Amendment precedent in evaluating Due Process claims. Respondents in Kingsley cited to Whitley v. Albers, 475 U.S. 312 (1986), and Hudson v. McMillian, 503 U.S. 1 (1992), for the proposition that pretrial detainees must show a subjective element for excessive force claims. Id. But the Court was quick to point out that “these cases, however, concern excessive force claims brought by convicted prisoners under the Eighth Amendment's
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Cruel and Unusual Punishment Clause, not claims brought by pretrial detainees under the Fourteenth Amendment's Due Process Clause.” Id. As the Court explained, “The language of the two Clauses differs, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” Id.
Bell, Youngberg, and Kingsley lead to the conclusion that Bell’s punishment standard applies to Plaintiffs’ claims in this case.
Sixth Circuit precedent addressing the COVID-19 pandemic does not mandate a different result. Defendants, in a supplemental notice, point the Court to two recent Sixth Circuit opinions addressing conditions of confinement claims related to COVID-19. (ECF No. 109 (citing Wilson, et al. v. Williams, et al., No. 20-3447, 2020 WL 3056217 (6th Cir. June 9, 2020) and Cameron, et al. v. Bouchard, et al., No. 201469, 2020 WL 3100187 (6th Cir. June 11, 2020)).) In Wilson, the Sixth Circuit applied a deliberate indifference standard to a group of medically vulnerable prisoners’ Eighth Amendment claims arising from their confinement in a federal prison. 2020 WL 3056217, at *7. In Cameron, the court applied Wilson to a conditions of confinement claim filed by a
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group of pretrial detainees and convicted prisoners in a county jail. 2020 WL 3100187, at *2. Wilson is an Eighth Amendment case and does not apply here. Although Cameron applied an Eighth Amendment deliberate indifference standard to some pretrial detainees, the majority did not address the alternative applicability of a punishment standard; the opinion does not cite to Bell. Writing in dissent, Chief Judge Cole raises this issue: “Moreover, the pretrial detainees at the Jail bring their claims under the Fourteenth Amendment, and, as such, I am not convinced that they must satisfy the deliberate indifference standard that doomed the petitioners’ Eighth Amendment claims in Wilson.” 2020 WL 3100187, at *3 (Cole, J., dissenting) (citing Kingsley v. Hendrickson, 135 S. Ct. at 2473; J.H. v. Williamson Cty., 591 F.3d at 717, and Bell v. Wolfish, 441 U.S. at 535, 538–39). Nothing in Cameron precludes today’s result.3
Only Thompson v. Cty. of Medina stands in contradiction to the Court’s holding today. 29 F.3d at 242 (applying Eighth Amendment standard to pretrial detainee’s conditions of confinement claims).
3 Plaintiffs point out that even if Cameron had rejected the applicability of a punishment standard to claims brought by pretrial detainees, Cameron was neither recommended for publication nor selected for publication in a federal reporter. Unpublished opinions lack precedential force and are not binding. See United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007).
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However, a close reading of Thompson demonstrates that the court recognized the application of Bell but proceeded to apply an Eighth Amendment standard as shorthand. As Thompson stated,
conditions of pretrial detention that implicate only the protection against deprivation of liberty without the due process of law, and no other express guarantee of the Constitution, are constitutional if they do not ‘amount to punishment of the detainee.’ Bell, 441 U.S. at 535[.] . . . Absent a showing of an expressed intent to punish on the part of jail officials, if such a condition or restriction of pretrial detention ‘is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’
Id. Although Thompson did not proceed to engage in a Bell analysis, it supports applying Bell here.
The Court acknowledges that today’s decision diverges from its earlier opinions in this case. (See ECF No. 23, PageID.563 (applying deliberate indifference standard); ECF No. 29, PageID.641 (applying deliberate indifference standard but questioning need for Plaintiffs to show subjective component); ECF No. 68, PageID.1932 (applying deliberate indifference standard but ordering supplemental briefing on whether punishment standard applies).) But Sixth Circuit and Supreme Court precedent compels this result, and a district court’s opinion is
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never binding precedent. See Camreta v. Greene, 563 U.S. 692, 709 (2011) (internal citation omitted) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”). Moreover, in each opinion, the Court found that the Plaintiffs satisfied an Eighth Amendment deliberate indifference standard. Conditions that constitute an Eighth Amendment violation necessarily constitute a Fifth Amendment violation. See Youngberg, 457 U.S. at 322 (civil detainees “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish); Hubbard v. Taylor, 399 F.3d 150, 165–66 (3d Cir. 2005) (“[T]he Eighth Amendment [is] relevant to conditions of pretrial detainees only because it establishe[s] a floor.”); Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004) (“[P]urgatory cannot be worse than hell.”). Therefore, the application of the punishment standard in any of the Court’s earlier opinions would not have led to a different result.
The Court will apply Bell to Plaintiffs’ current and future claims. “[U]nder the Due Process Clause, [Plaintiffs] may not be punished.” Bell
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441 U.S. 520, 535 (1979). Youngberg mandates that Plaintiffs are entitled to “conditions of reasonable care and safety.” 457 U.S. at 324. The Court finds that Defendants have not expressed an intent to punish Plaintiffs; accordingly, under Bell, the Court must determine whether Plaintiffs’ detention is rationally connected to a legitimate government purpose and whether it is excessive in relation to that purpose. Id. at 538.
The Bell standard does not require consideration of Defendants’ subjective evaluation of Plaintiffs’ conditions of confinement. As Kingsley explained,
the Bell Court applied [an] objective standard to evaluate a variety of prison conditions, including a prison's practice of double-bunking. In doing so, it did not consider the prison officials' subjective beliefs about the policy. . . . Rather, the Court examined objective evidence, such as the size of the rooms and available amenities, before concluding that the conditions were reasonably related to the legitimate purpose of holding detainees for trial and did not appear excessive in relation to that purpose.
135 S.Ct. 2466, 2473 (2015). Kingsley concludes that “as Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental
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action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 2473–2474.
This application is consistent with the distinction between Fifth and Eighth Amendment protections. Estelle recognized that the subjective component of deliberate indifference claims derived from the Eighth Amendment’s prohibition against “unnecessary and wanton infliction of pain.” 429 U.S. at 103 (emphasis added). The Court reiterated this conclusion in Wilson. Citing Whitley v. Albers, 475 U.S. 312, 319 (1986), the Court wrote that “‘after incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’ . . . These cases mandate inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment.” 501 U.S. at 298–299. By contrast, Bell proscribes all punishment of civil and pretrial detainees. 441 U.S. at 535. As the Fifth Circuit explains in Hare,
In true jail condition cases, an avowed or presumed intent by the State or its jail officials exists in the form of the challenged condition, practice, rule, or restriction. A State's imposition of a rule or restriction during pretrial confinement manifests an avowed intent to subject a pretrial detainee to that rule or restriction. Likewise, even where a State may not want to subject a detainee to inhumane conditions of confinement or
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abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices. Thus, a true jail condition case starts with the assumption that the State intended to cause the pretrial detainee's alleged constitutional deprivation.
74 F.3d at 644–645.4 Indeed, it is Defendants’ affirmative act of detaining these medically vulnerable Plaintiffs during the COVID-19 pandemic that triggers Plaintiffs’ substantive Due Process rights and that Plaintiffs challenge here. Deshaney, 489 U.S. at 200. Defendants do not contest their intent both to initially detain Plaintiffs and to continue their detention.
Having established that the Bell punishment standard applies and having traced the contours of that standard, the Court turns to Plaintiffs’ likelihood of success on the merits.
2. Application Plaintiffs’ Fifth Amendment claim does not challenge the lawfulness of their initial detention but instead its continuation during
4 Above, the Court declined to adopt Hare’s system for applying the punishment or deliberate indifference standards to claims brought by civil and pretrial detainees because it relied on specific Fifth Circuit precedent. Here, the Court finds Hare persuasive because it directly interprets Bell, a Supreme Court precedent binding on courts in both the Fifth and Sixth Circuits.
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the COVID-19 pandemic. In their words, “Plaintiffs contend that, as medically vulnerable people who are at high risk of severe illness or death, their detention during the pandemic is not reasonably related to, and excessive in relation to, the government’s interest in ensuring their availability for deportation.” (ECF No. 117, PageID.4029.)
The record does not show that Defendants intended to punish Plaintiffs, and so the Court must determine whether Plaintiffs’ detention is rationally connected to a legitimate government purpose and whether it is excessive in relation to that purpose. Defendants have a legitimate government interest in civil immigration detention to “assur[e] [a noncitizen’s] presence at the moment of removal” and, where a detainee would pose a danger, to “protect[] the community.” Zadvydas v. Davis, 533 U.S. 678, 690, 699 (2001); see also Demore v. Kim, 538 U.S. 510, 523 (2003) (“[D]etention during deportation proceedings [is] a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character.”) Below, the Court finds that, with reasonable terms of supervision, no Plaintiff would pose a danger to the community upon
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release. The Court concludes that Plaintiffs’ continued detention is likely in violation of Plaintiffs’ Fifth Amendment rights because it is excessive in relation to the Government’s interest in ensuring Plaintiffs’ presence during the removal process. Bell, 441 U.S. at 538; see also Kingsley, 135 S.Ct. at 2473–2474.
Defendants are afforded some deference in implementing policies to mitigate the risk of COVID-19. Bell holds that “[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to . . . maintain institutional security.” 441 U.S. at 547. Youngberg similarly instructs that “[i]n determining whether the State has met its obligations [with respect to reasonable care and safety], decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to enable institutions of this type— often, unfortunately, overcrowded and understaffed—to continue to function.” 457 U.S. at 324. In creating the guidance that dictates Plaintiffs’ conditions of confinement, ICE drew on the expertise of medical professionals, disease control specialists, detention experts, and field operators. (ECF No. 101, PageID.3571.) Additionally, ICE guidance
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largely—though imperfectly—tracks CDC guidance for detention centers during the COVID-19 pandemic. As the Supreme Court and Sixth Circuit have recognized, CDC public health and medical determinations are to be given significant weight. See Bragdon v. Abbott, 524 U.S. 624, 650 (1998) ([T]he views of public health authorities, such as the . . . CDC . . . are of special weight and authority.”); Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 404 (6th Cir. 1998) (deferring to the “medical judgment expressed in the Report of the Centers for Disease Control in evaluating the district court’s ruling on whether Mauro posed a direct threat in the essential functions of his job.”). Bell and Youngberg grant Defendants’ response a “presumption of correctness.” However, presumptions may be rebutted, and, once rebutted, they must be reestablished to have force.
Plaintiffs have rebutted any presumption that the conditions of their continued detention provide reasonable care or safety during the COVID-19 pandemic. Above, the Court found that Plaintiffs each have a heightened risk of a dire outcome from COVID-19; Plaintiffs face a significant risk of COVID-19 infection while at the Calhoun County Correctional Facility; and Defendants’ precautionary measures, even
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where followed, do not sufficiently mitigate that risk. The finding that Plaintiffs’ current detention constitutes punishment flows logically from the Court’s finding that Plaintiffs face irreparable injury absent an injunction. As the District Court for the Western District of Washington found in analyzing a similar claim,
Although Petitioner’s initial detention could not be described as punitive, the situation has drastically changed given the unique and unprecedented threat posed by COVID-19. . . . Petitioner has established a likelihood that he is being held in conditions that create a substantial risk of serious and potentially permanent, irreparable harm due to his age and underlying health conditions. These conditions create far more serious consequences for Petitioner than are justified by Respondent’s need to ensure his presence at removal, should that be the ultimate outcome of his proceedings.
Pimental-Estrada v. Barr, Case No. 20-495, 2020 WL 20092430, at *17 (W.D. Wash. Apr. 28, 2020). Because Defendants have yet to provide evidence that could revive the presumptive validity of Plaintiffs’ continued detention, the Court finds that the current conditions at Calhoun County Correctional Facility do not satisfy Youngberg’s mandate that Plaintiffs are entitled to “conditions of reasonable care and safety.” 457 U.S. at 324.
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The more difficult question is whether there are any conditions of confinement such that Plaintiffs’ continued detention would not be excessive in relation to Defendants’ interest. If such conditions exist, release would be inappropriate relief under the Court’s habeas jurisdiction. But as set forth above, detainees remain in close contact with one another in both dormitory-style rooms and common spaces. The lack of adequate social distancing—the “cornerstone” of any effective COVID-19 preventative response—four months into the pandemic strongly suggests that such distancing may be impossible. The Calhoun County Correctional Facility is designed for physically efficient communal confinement, fitting hundreds of detainees into pod-style housing where dozens of detainees sleep in bunkbeds spaced close together, share toilets and showers, and eat side by side. Based upon the evidence submitted thus far, even as Calhoun County signals compliance with many CDC guidelines, the facility is structurally unable to provide dormitory and mealtime accommodations that ensure safe social distancing. (See ECF No. 98-3, PageID.3417 (plaintiffs cannot eat at mealtimes without their elbows touching other detainees, are housed in cells with multiple other detainees, and sleep in bunkbeds spaced three
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feet apart.)) By all accounts, Calhoun County may have to restructure or even rebuild its correctional facility to house medically vulnerable civil detainees in a manner that comports with the Fifth Amendment during the COVID-19 pandemic.5 Accordingly, the Court finds that any conditions of confinement at the Calhoun County Correctional Facility, as it exists today, are likely to be unconstitutionally punitive.
The Court makes two additional findings with respect to Plaintiffs’ claim. First, the fact that detention is statutorily mandated for some Plaintiffs does not change the Court’s punishment calculus. (See ECF No. 101, PageID.3588 (“Further, many of the Petitioners were either subject to statutorily mandated detention or denied bond in a separate proceeding before an immigration judge.”) All Plaintiffs are civil detainees entitled to protection under the Fifth Amendment. Statutes authorizing immigration detention, whether discretionary or mandatory, give way when constitutional rights are impaired.
Second, the Constitution may require a detainee’s release even as it allows for an inmate’s continued detention. Noting that the Sixth
5 Indeed, federal courts throughout the country are redesigning jury boxes and other facilities, including holding cells, so that constitutionally mandated work can continue during the pandemic.
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Circuit in Wilson did not find an Eighth Amendment violation from conditions similar to those at Calhoun, Defendants argue that “[i]t would be an odd result if immigration detainees at Calhoun were nonetheless entitled to greater safety from COVID-19 under Bell than the inmates at Calhoun where ‘reasonable safety’ is a ‘basic human need.’” (ECF No. 101, PageID.3586–3587 (citing Butler v. Fletcher, 465 F.3d 340, 344-45 (8th Cir. 2006) (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)).) But the court in Wilson recognized that the “objective prong [of the plaintiffs’ deliberate indifference claim] is easily satisfied.” 2020 WL 3056217, at *7. The Court denied relief because plaintiffs had not shown prison officials’ subjective deliberate indifference; Plaintiffs do not need to show a subjective element here. Moreover, this purported anomalous result is in fact supported by Supreme Court precedent: civil detainees “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 322.
Because Plaintiffs’ continued detention at the Calhoun County Correctional Facility during the COVID-19 pandemic constitutes
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punishment, Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim.
B. Public Interest When the government opposes the issuance of preliminary injunctive relief, as Defendants do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). The public has an interest in preserving Plaintiffs’ constitutional rights and in protecting public health. See G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994) (“[I]t is always in the public interest to prevent the violation of a party's constitutional rights); Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests). The Court must balance these interests against the public interest in enforcement of the United States’ immigration laws. See United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The
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Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”).
Regardless of whether a noncitizen is detained, the government may pursue their removal. For Plaintiffs who are not a flight risk and who do not pose a danger to the community, the public’s interest in the enforcement of immigration laws therefore must give way to its interest in preserving constitutional rights and protecting public health. Defendants do not argue that Plaintiffs Krcoska, Johanna Whernman, and William Whernman are either a flight risk or a danger to the community. Accordingly, the Court finds that the public interest favors their release.
Defendants argue that Plaintiff Barash is a flight risk. (ECF No. 101, PageID.3549–3450.) On September 12, 2017, Barash did not report to ICE as required; on December 19, 2017, Barash was deemed to have absconded from ICE. (ECF No. 102, PageID.3655.) Barash also failed to appear after a December 15, 2014 arrest for operating while intoxicated, resulting in the issuance of a warrant for his arrest. (ECF No. 102, PageID.3657.) Although these incidents are relevant to flight risk analysis, Plaintiffs explain that Barash also “lived openly in his longtime
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home, subsequently went to immigration court, and believed he was in compliance with his obligations. . . . Barash has every incentive to appear as, after an almost three-year wait, his immigration case is finally scheduled to be heard in July.” (ECF No. 117, PageID.4034.) The Court finds that reasonable conditions of supervision mitigate any concern that Barash will fail to appear for removal proceedings.
Defendants also argue that Barash poses a danger to the community because he has what Defendants describe as a “lengthy and sustained criminal history.” (ECF No. 101, PageID.3549–3450.) But Barash’s convictions—larceny less than $100, larceny in a building, delivery of cocaine, breaking and entering an automobile with damage, possession of marijuana, controlled substance delivery/manufacture, possession of cocaine, possession of analogues, and operating while intoxicated (see ECF No. 102, PageID.3657)—are each more than five years old and do not involve violence against another person Additionally, Barash’s only conviction in the past decade was for driving while intoxicated in 2014. Accordingly, the Court finds that Barash is not a danger to the community.
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Defendants claim that Plaintiff Perez Pavon would also pose a danger to the community. (ECF No. 101, PageID.3589.) Defendants allege that “Pavon has convictions for domestic violence, and there is some indication that Pavon regularly abuses his wife.” (ECF No. 101, PageID.3590.) Plaintiffs counter that “Mr. Perez Pavon has only been convicted of . . . one inciden[t] of misdemeanor domestic violence,” and that “[i]f Perez Pavon is released, he will reside with his mother in her home–not with his wife.” (ECF No. 117, PageID.4034.) The Court takes domestic violence allegations seriously—particularly given evidence that “domestic abuse is . . . flourishing in the conditions created by the pandemic.” Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, NY Times (last updated Apr. 14, 2020), ECF No. 101-11. However, the Court finds that Perez Pavon’s release plan mitigates concerns that he will commit further domestic violence. Accordingly, the Court finds that Perez Pavon is not a danger to the community.
Defendants contend that Plaintiff Ley Santana is a flight risk. (ECF No. 101, PageID.3590.) On September 13, 2019, an immigration judge found Santana to be a flight risk. (ECF No. 106, PageID.3679.) Plaintiffs argue that “[o]ther than a prior conviction for misdemeanor illegal entry
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into the United States,” Ley Santana “has no criminal history whatsoever[] and presents no indicia of flight risk.” (ECF No.117, PageID.4034.) Without knowing the reasoning underlying the Immigration Judge’s decision and with no specific allegations regarding Ley Santana’s risk of flight today, the September 2019 ruling cannot be dispositive here. The Court finds that the record does not support a finding that Ley Santana is a flight risk.
Finally, Defendants argue that “none of the Petitioners adequately address how they will avoid exposure from COVID-19 if released.” (ECF No. 101, PageID.3590.) In Wilson, the Sixth Circuit, recognizing the BOP’s “legitimate concerns about public safety and that the district court’s injunction “would result in release of some prisoners,” found that “the district court’s response does not address the BOP’s concerns about how the released inmates would look after themselves.” 2020 WL 3056217, at *11. Unlike the petitioners in Wilson, each Plaintiff here has provided the Court with a release plan demonstrating Plaintiffs’ ability to mitigate their risk of getting or spreading COVID-19. (See ECF No. 991, PageID.3540 (Plaintiff Barash); ECF No. 99-3, PageID.3547 (Plaintiff Perez Pavon); ECF No. 99-4, PageID.3552 (Plaintiff Krcoska); ECF No.
63

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99-5, PageID.3556 (Plaintiff Ley Santana); ECF No. 99-6, PageID.3560
(Plaintiff Johanna Whernman); ECF No. 99-7, PageID.3562 (Plaintiff
William Whernman)). The Court finds that these individual release plans
adequately address Defendants’ concerns.
Accordingly, the public interest favors each Plaintiff’s release.
Because all four factors weigh in favor of issuing emergency
injunctive relief, the Court grants Plaintiffs’ motion as a preliminary
injunction.
CONCLUSION
As the Court previously set forth,
Judges, by and large, are neither mathematicians nor medical experts, and the undersigned is neither. Still, adjudicating questions of constitutional law in relation to the ongoing COVID-19 pandemic requires mapping precise calculations of medical risk onto the more nebulous legal standards of high likelihood of irreparable harm. . . . To do so, the Court must rely on evidence submitted by the parties—declarations from medical experts, scientific publications, and guidance from public health agencies. For judicial determinations to have integrity and consistency, justice must be guided by science.
(ECF No. 90, PageID.2708.)
In the course of three months, this litigation has spawned 122
docket entries totaling more than 4,100 pages. Plaintiffs have submitted 64

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a body of public health and medical evidence detailing the general and specific risks that COVID-19 posed and continues to pose to noncitizen civil detainees at the Calhoun County Correctional Facility. Defendants, rather than contesting the veracity of Plaintiffs’ evidence, have argued that the Constitution does not mandate Plaintiffs’ release: “Regardless of whether Petitioners and their experts assert that as a matter of policy Respondents should suspend lawful immigration detention to protect detainees, what is the best policy is not at issue. The only thing at issue is whether Respondents have violated Petitioners’ constitutional rights.” (ECF No. 101, PageID.3567–3568.)
Science makes clear that COVID-19 poses a high risk of irreparable injury to these Plaintiffs. Their continued detention, in light of this risk, is excessive in relation to any legitimate government purpose. Supreme Court precedent thus deems Plaintiffs’ continued detention punishment, which the Constitution expressly forbids.
For the reasons stated above, the Court GRANTS a preliminary injunction requiring Plaintiffs Waad Barash, Lench Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, and William Whernman’s immediate release from ICE Custody. Plaintiffs will be
65

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subject to the following restrictions: Plaintiffs are subject to fourteen

days of home quarantine; Plaintiffs must comply with all Michigan

Executive Orders; and Plaintiffs must appear at all hearings pertaining

to their removal proceedings. Defendants may impose other reasonable

nonconfinement terms of supervision. Defendants are further

RESTRAINED from arresting Petitioner for civil immigration detention

purposes until the State of Emergency in Michigan (related to COVID-

19) is lifted or until further Court Order stating otherwise.

The Court DENIES Plaintiffs’ motion with respect to Plaintiff

Leonard Baroi.

IT IS SO ORDERED.

Dated: June 28, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

66

 
 Case 5:20-cv-10829-JEL-APP ECF No. 68 filed 05/12/20 PageID.1902 Page 1 of 55

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner-Plaintiff,

Case No. 20-10829

and

Judith E. Levy

Qaid Alhalmi, et al.,

United States District Judge

Plaintiff-Intervenors, Mag. Judge Anthony P. Patti

v.

Rebecca Adducci, et al.,

Respondent-Defendants.

________________________________/

OPINION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AS A
PRELIMINARY INJUNCTION [44]
This opinion marks the seventh time the Court has assessed the

constitutionality of continued detention of medically vulnerable

noncitizen civil detainees at the Calhoun County Correctional Facility

during the pendency of the COVID-19 pandemic. The legal issues before

the Court are narrow: whether four civil detainees face a high risk of

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irreparable injury from COVID-19, whether Defendants1 have shown deliberate indifference to the medical needs of these Plaintiffs in crafting and implementing their response to the pandemic, and whether the public interest favors Plaintiffs’ release. So too is the relief requested: Plaintiffs do not, at this time, seek sweeping injunctive relief that would insert the Court into the day-to-day management of either U.S. Immigration and Customs Enforcement (ICE) or the Michigan Department of Corrections (MDOC); instead, Plaintiffs request the immediate release of four individuals currently detained at the Calhoun County Correctional Facility. Because the Court finds that Plaintiffs Alhami and Cardona Ramirez have shown a high risk of irreparable injury absent relief, a likelihood of success on the merits, and that the public interest favors their release, the Court grants a preliminary injunction ordering their immediate release. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria
1 The individuals bringing this action are Petitioners for purposes of habeas relief and Plaintiffs for purposes of injunctive and declaratory relief. Those against whom the action is brought are Respondents for purposes of habeas relief and Defendants for purposes of injunctive and declaratory relief. For simplicity, the terms Plaintiffs and Defendants will be used throughout. (ECF No. 43, PageID.918.)
2

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and Rosales Borboa’s health conditions. The Court denies Plaintiffs’ requests for additional relief not initially requested in Plaintiffs’ motion. FACTUAL BACKGROUND
Qaid Alhalmi Plaintiff Qaid Alhalmi is a fifty-four-year-old2 Yemeni citizen. (ECF No. 44, PageID.1022.) He was admitted to the United States on a B-2 nonimmigrant visitor visa on July 27, 1995. On July 8, 1999, after an unsuccessful request for asylum, the Immigration and Naturalization Service (INS), the predecessor to the Department of Homeland Security, initiated removal proceedings against Alhalmi, charging him as removable from the country as a nonimmigrant overstay. (Id.) He has been detained at the Calhoun County Correctional Facility since September 17, 2019 based on a finding that Alhalmi faced a significant likelihood of removal in the reasonably foreseeable future. (ECF No. 521, PageID.1547.) Alhalmi suffers from Type 2 diabetes, for which he takes a daily oral medication to control blood sugar and which requires a four-
2 Defendants allege that Plaintiff Alhalmi is fifty-eight-years-old. (ECF No. 521, PageID.1545).
3

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times-daily blood sugar test to determine if insulin is needed. (ECF No. 57, PageID.1670.)
Tomas Cardona Ramirez Plaintiff Tomas Cardona Ramirez is a thirty-seven-year-old citizen of Guatemala. (ECF No. 52, PageID.1515.) He was detained by ICE officers on January 31, 2020, and was charged on February 5, 2020, for being present in the United States without having been admitted or paroled. (ECF No. 52-2, PageID.1552.) Cardona Ramirez suffers from Type 1 diabetes, hypertension, and hyperlipidemia, each of which requires daily medications to control. (ECF No. 57, PageID.1670.) Damary Rodriguez Salabarria Plaintiff Damary Rodriguez Salabarria is a forty-six-year-old citizen of Cuba. (ECF No. 52, PageID.1516.) She was detained in Texas by U.S. Border Patrol on August 1, 2019. (ECF No. 52-4, PageID.1563.) On August 10, 2019, Plaintiff Rodriguez Salabarria was transferred due to a housing shortage in Texas to the Calhoun County Correctional Facility. (Id.) She suffers from hypertension, chronic gastritis, a peptic ulcer, and gastroesophageal reflux, for which she takes a daily medication for each. (ECF No. 44, PageID.1023.) Her medical records
4

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show a recent diagnosis of chronic localized mucocutaneous candidiasis, which the Court understands to be a yeast infection. (ECF No. 57, PageID.1675.) Additionally, Plaintiff Rodriguez Salabarria has a history of hospitalizations for acute pancreatitis, an appendectomy, cholecystectomy, and kidney infections. (Id.)
Emanuel Rosales Borboa Plaintiff Emanuel Rosales Borboa is a thirty-five-year-old citizen of Mexico. (ECF No. 52, PageID.1516.) On June 24, 2014, Rosales Borboa applied for—and on December 16, 2014, U.S. Citizenship and Immigraiton Services denied him—Deferred Action for Childhood Arrivals status. (ECF No. 52-5, PageID.1568.) Although he was initially released on bond on May 15, 2017 after United States Border Patrol initiated removal proceedings on April 27, 2017 (id. at PageID.1568– 1569), Rosales Borboa was subsequently arrested by the Detroit Police Department and has been in ICE custody at the Calhoun County Correctional Facility since March 10, 2020. (Id. at PageID.1569.) Rosales Borboa suffers from asthma, for which he was hospitalized for two days approximately ten years ago. (ECF No. 44, PageID.1023.) At various times, the frequency of which the parties contest, Rosales Borboa has
5

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required the use of an inhaler and steroids to control his asthma. (Id. at PageID.1024; ECF No. 64, PageID.1812.)
Defendants Plaintiffs bring suit against Rebecca Adducci, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; Matthew T. Albence, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; Chad Wolf, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; William P. Barr, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. Immigration and Customs Enforcement. (ECF No. 43.) PROCEDURAL HISTORY On March 30, 2020, Petitioner Janet Malam filed an Emergency Petition for Writ of Habeas Corpus.3 (ECF No. 1.) On April 3, 2020, the Court allowed Plaintiff-Intervenors Amer Toma and Ruby Briselda
3 The Court subsequently granted Petitioner Malam’s motion for a temporary restraining order (ECF No. 23), which the Court then converted into a preliminary injunction. (ECF No. 33.)
6

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Escobar to intervene. On April 5, 2020, Plaintiffs Toma and Escobar filed an Emergency Petition for Habeas Corpus and Complaint for Injunctive Relief. (ECF No. 17.) On April 26, fifteen named Plaintiffs filed an amended class action complaint. (ECF No. 43.)
Plaintiffs’ proposed class consists of “all noncitizens who are detained in ICE custody at Calhoun.” (Id. at PageID.994.) The putative class seeks declaratory relief that continued detention under current conditions at the Calhoun County Correctional Facility constitutes impermissible punishment under the Fifth Amendment. (Id. at PageID.999.) Named Plaintiffs additionally seek injunctive relief. (Id.)
Plaintiffs also seek certification of a subclass of “medically vulnerable individuals,” defined as “all noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.” (Id. at PageID.994 –995). The subclass seeks habeas relief and declaratory relief that continued confinement at the Calhoun County Correctional Facility constitutes impermissible punishment and cannot guarantee reasonable safety for medically vulnerable detainees. (Id. at PageID.1000.) Named Plaintiffs Alhalmi,
7

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Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang additionally seek injunctive relief on this claim. (Id.)
Also on April 26, 2020, six named Plaintiffs filed an emergency motion for a temporary restraining order. (ECF No. 44.) Four of these six Plaintiffs—Qaid Alhalmi, Tomas Cardona Ramirez, Damary Rodriguez Salabarria, and Emanuel Rosales Borboa—claim that because of their age and/or underlying medical conditions, their continued civil detention violates their Fifth Amendment rights by exposing them to a substantial risk of serious illness and death related to COVID-19. Accordingly, these Plaintiffs seek a temporary restraining order requiring their immediate release from confinement. (Id. at PageID.1043.) Two Plaintiffs— Julio Fernando Medina Euceda4 and Min Dan Zhang5—seek alternative forms
4 In their May 5, 2020 reply brief, Plaintiffs informed the Court that Plaintiff Medina Euceda has been transferred to a detention center in Louisiana and is scheduled to be removed on May 11, 2020. (ECF No. 57, PageID.1670.) Plaintiffs argue that “the Court should order Defendants to provide the information as to what steps Defendants took and plan to take to prevent infection (a) during the transfer; (b) once Mr. Medina Euceda arrived in Louisiana; and (c) during removal.” (Id.)
5 In their May 5, 2020 reply brief, Plaintiffs informed the Court that Plaintiff Zhang “is no longer pursuing immediate release.” (ECF No. 57, PageID.1667.) Instead, Plaintiffs request that “the Court order that, within the next twenty-four hours, Ms. Zhang be tested for COVID-19 and seen by a physician.” (Id.)
8

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of relief. Defendants responded on April 29, 2020 (ECF No. 52), and Plaintiffs replied on May 5, 2020. (ECF No. 57.) The Court granted Defendants leave to file a sur-reply, which Defendants filed on May 6, 2020. (ECF No. 64.) On May 7, 2020, the Court held a hearing by video teleconference and heard oral argument on Plaintiffs’ motion.
For the reasons stated below, the Court grants a preliminary injunction requiring Plaintiffs Alhami and Cardona Ramirez’ immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria and Rosales Borboa’s health conditions and the applicability of a punishment standard to Plaintiffs’ claims. The Court denies Plaintiffs’ motion with respect to their requests for additional relief. LAW AND ANALYSIS
I. Jurisdiction In its April 6, 2020 Opinion and Order, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 2441. (ECF No. 23, PageID.535.) In the alternative, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at PageID.536.) The Court held that sovereign
9

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immunity did not apply (id. at PageID.544) and that no other statute deprived the Court of jurisdiction. (Id. at PageID.547.) Plaintiffs’ current motion presents the same jurisdictional questions; Defendants raise no new jurisdictional arguments. With respect to jurisdiction, the Court adopts its April 6, 2020 Opinion and Order in full.
II. Legal Standard Plaintiffs seek a temporary restraining order. (ECF No. 54.) Nonetheless, Plaintiffs gave notice to Defendants and did not seek a ruling before Defendants could respond. A temporary restraining order (TRO), which can be issued without notice to the adverse party, is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). Here, because the Defendants are on notice and the Court allowed time for extensive briefing and heard oral argument on Plaintiffs’ motion, the Court will treat the motion as one for a preliminary injunction rather than for a temporary restraining order. See Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *3 (E.D. Mich. May 9, 2020) (doing the same).
10

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“Preliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
III. Application Because the Court finds that Plaintiffs Alhami and Cardona Ramirez have shown a high risk of irreparable injury absent relief, a likelihood of success on the merits, and that the public interest favors
11

Case 5:20-cv-10829-JEL-APP ECF No. 68 filed 05/12/20 PageID.1913 Page 12 of 55
their release, the Court grants in part Plaintiffs’ motion. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria and Rosales Borboa’s health conditions and the applicability of a punishment standard to Plaintiffs’ claims. The Court denies Plaintiffs’ new requests for additional relief not contained within Plaintiffs’ motion.
A. Likelihood of Irreparable Injury Plaintiffs Alhalmi and Cardona Ramirez are likely to experience irreparable injury absent an injunction, both in the form of loss of health or life and in the form of an invasion of their constitutional rights. See Fofana v. Albence, Case No. 20-10869, 2020 WL 1873307, at *10 (E.D. Mich. Apr. 15, 2020) (citing Thakkur v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020)) (“There can be no injury more irreparable than lasting illness or death.”); see also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”) 1. Loss of Health or Life from COVID-19 In five prior opinions in this case, the Court has held that although there was then no current COVID-19 outbreak at the Calhoun County
12

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Correctional Facility, noncitizen civil detainees nonetheless face a high risk of infection from COVID-19 in the coming weeks, months, and possibly years. (See ECF Nos. 23 (granting Petitioner Malam TRO), 29 (granting Plaintiff Toma TRO), 33 (converting Malam TRO into preliminary injunction), 41 (converting Toma TRO into preliminary injunction)); Zaya v. Adducci, Case No. 20-10921, 2020 WL 1903172 (E.D. Mich. Apr. 18, 2020) (granting Petitioner Zaya TRO). Evaluating the significant body of public health, medical, and other evidence on the record regarding the pandemic, the Court concluded that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as [Plaintiffs] within the CCCF facility.” (ECF No. 23, PageID.559.)
On May 11, 2020, counsel for Defendants informed the Court by email that one detainee at the Calhoun County Correctional Facility has tested positive for COVID-19. According to counsel, the detainee was quarantined at intake and was isolated when he became symptomatic. For Plaintiffs, the emergence of COVID-19 at the Calhoun County
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Correctional Facility transforms a generalized yet substantial risk into a specific and immediate risk.
The rapid rise in COVID-19 cases within ICE detention centers since the Court first ruled on this issue further demonstrates the risk to Plaintiffs: on April 4, 2020, ICE had confirmed thirteen cases of COVID19 among immigration detainees and seven cases among detention center employees (ECF No. 23, PageID.553); despite precautionary measures, as of May 12, 2020, 881 immigration detainees have tested positive (of 1,736 tested detainees), while ICE has confirmed forty-two cases of COVID-19 among detention center employees. ICE Guidance on COVID19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated May 12, 2020 at 5:40pm). This exponential growth represents a doubling rate of approximately six days.
The number of COVID-19 cases in detention facilities nationwide further highlights the stark reality that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection. Although the serious outbreak at the Cook County Jail—quickly recognized as the then single greatest source of COVID-19 infections in the United States, see Timothy Williams &
14

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Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads

Behind

Bars,

NY

Times

(Apr.

8,

2020),

nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html—

does not directly increase the risk to Petitioner, it shows how a pandemic

can sweep into communal detention environments despite precautionary

measures being taken prior to any confirmed cases. See Sheriff Dart

Expands Precautionary Measures for COVID-19 at Cook County

Department of Corrections, Cook County Sheriff’s Office (Mar. 12, 2020),

https://www.cookcountysheriff.org/sheriff-dart-expands-precautionary-

measures-for-covid-19-at-cook-county-department-of-corrections (noting

significant precautionary measures similar to those at Calhoun County

Correctional Facility); Update on Efforts to Reduce Population at Cook

County Jail and Ongoing Precautions to Prevent COVID-19, Cook County

Sheriff’s

Office

(Mar.

18,

2020),

https://www.cookcountysheriff.org/update-on-efforts-to-reduce-

population-at-cook-county-jail-and-ongoing-precautions-to-prevent-

covid-19 (noting expansion of precautionary measures). Despite

precautionary measures, cases of COVID-19 among inmates in the Cook

County Jail exploded from two to 167 in eight days. (ECF No. 29,

15

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PageID.635.) Likewise, on April 1, 2020, the Rikers Island jail complex’s chief physician acknowledged that “infections are soaring” despite the facility’s “following Centers for Disease Control and Prevention guidelines and having moved mountains to protect our patients.” Miranda Bryant, Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s Top Doctor, The Guardian (Apr. 1, 2020), https://www.theguardian.com/us-news/2020/apr/01/rikersislandjailcoronavirus-public-health-disaster. As of mid-April, the nationwide curve of COVID-19 infections among Federal Bureau of Prison inmates showed no sign of flattening, again despite significant precautionary measures. See Walter Pavlo, Federal Bureau of Prisons Institutions Not Showing Any Signs of “Flattening Curve,” Forbes (Apr. 15, 2020), https://www.forbes.com/sites/walterpavlo/2020/04/15/federalbureauofprisons-institutions-not-showing-any-signsofflatteningcurve/#46f2999f54dd.
The Court commends Defendants for taking what precautions they have, but the record before the Court indicates that at the Calhoun County Correctional Facility, precautionary measures may exist as policy only. Plaintiffs submit the declaration of Dr. Homer Venters, a physician,
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Case 5:20-cv-10829-JEL-APP ECF No. 68 filed 05/12/20 PageID.1918 Page 17 of 55
internist and epidemiologist with over a decade of experience in providing, improving, and leading health services for incarcerated people. (ECF No. 44-4.) Dr. Venters, having reviewed the declarations of Plaintiffs’ attorneys, finds that Plaintiffs’ experiences at the Calhoun County Correctional Facility show that adequate social distancing remains impossible, access to sanitation and personal protective equipment is scarce, rules regarding the use of masks for staff are lax or nonexistent, and ICE and MDOC are testing neither asymptomatic detainees nor all detainees who present with symptoms. (ECF No. 44-4, PageID.1092–1094.) The widespread lack of testing is of particular concern given that COVID-19 can spread through asymptomatic transmission. Of the 3,277 inmates who tested positive for COVID-19 in Arkansas, North Carolina, Ohio, and Virginia, ninety-six percent were asymptomatic. Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus -- 96% Without Symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/ushealthcoronavirus-prisons-testing-in/in-four-u-s-state-prisons-nearly3300-inmates-test-positive-for-coronavirus-96-withoutsymptomsidUSKCN2270RX. The Calhoun County Correctional Facility’s
17

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s failure to successfully implement even general precautionary measures increases the risk of COVID-19 infection to all Plaintiffs.
For Plaintiffs Alhalmi and Cardona Ramirez, this high risk of infection constitutes a high risk of irreparable injury in the form of loss of health or life absent injunctive relief. For Plaintiffs Rosales Borboa and Rodriguez Salabarria, the Court orders supplemental briefing on their underlying health conditions.
Plaintiffs Alhalmi and Cardona Ramirez Alhalmi suffers from Type 2 diabetes, for which he takes a daily oral medication to control blood sugar and a four-times-daily blood sugar test to determine if he needs insulin. (ECF No. 57, PageID.1670.) Cardona Ramirez suffers from Type 1 diabetes, hypertension, and hyperlipidemia, each of which requires daily medications to control. (ECF No. 57, PageID.1670.) The CDC recognizes diabetes as a risk factor that increases risk of serious complications from COVID-19, including death. See Groups at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last reviewed Apr. 17, 2020). Dr. Venters concludes that both Plaintiffs Alhalmi and Cardona Ramirez are
18

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at “a high risk of severe illness or death if [they contract] COVID-19.” (ECF No. 44-1, PageID.1091–1092.) Defendants do not contest that Plaintiffs Alhalmi and Cardona Ramirez have established that their preexisting medical conditions place them at a serious risk of substantial harm from COVID-19. (ECF No. 52, PageID.1529 (arguing only that Plaintiffs “Euceda, Salabarria, Borboa, and Zhang fail to establish they have a substantial risk of serious harm from exposure to COVID-19”).)
The Court concludes that because of their diabetes, both Plaintiffs Alhalmi and Cardona Ramirez are at sufficiently heightened risk of severe complication from COVID-19 such that a high risk of exposure translates into high risk of irreparable injury. Because Plaintiff Alhami’s diabetes is sufficient to find that a high risk of COVID-19 infection constitutes a high risk of irreparable injury in the form of severe illness or death, the Court need not address the extent to which Alhalmi’s age further increases the risk of irreparable injury.
Plaintiff Rodriguez Salabarria Plaintiff Rodriguez Salabarria suffers from hypertension, chronic gastritis, a peptic ulcer, and gastroesophageal reflux, for which she takes a daily medication for each. (ECF No. 44, PageID.1023.) Her medical
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records show a recent diagnosis of chronic localized mucocutaneous candidiasis (CMC). (ECF No. 57, PageID.1675.) Additionally, she has a history of hospitalizations for acute pancreatitis, an appendectomy, cholecystectomy, and kidney infections. (Id.) Dr. Venters, upon reviewing Plaintiff’s medical records, concluded that she is “at elevated risk of serious illness or death from COVID-19 based on the CDC guidelines.” (ECF No. 57-2, PageID.1695.) In particular, Dr. Venters found that “the CDC has identified both hypertension and conditions that can cause a person to be immunocompromised to put a person at higher risk of illness severity and outcomes from COVID-19.” (Id. at PageID.1694.)
The record does not support a finding that Plaintiff’s chronic gastritis, peptic ulcer, gastroesophageal reflux, history of hospitalizations, or CMC increase her risk of severe complications from COVID-19. Dr. Venters, without citation to CDC guidance or any other medical study, broadly concluded that Plaintiff Salabarria’s “medical conditions place her at a high risk of severe illness or death if she contracts COVID-19.” (ECF No. 44-4, PageID.1092.) In his supplemental declaration, Dr. Venters pointed only to Plaintiff’s hypertension and CMC as being risk factors: “the CDC has identified both hypertension
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and conditions that can cause a person to be immunocompromised to put a person at higher risk of illness severity and outcomes from COVID-19.” (ECF No. 57-2, PageID.1694.) Absent guidance from the CDC or another public health source that chronic gastritis, peptic ulcer, gastroesophageal reflux, and a history of hospitalizations constitute risk factors, Plaintiffs must provide more than this conclusory statement that Plaintiff Rodriguez Salabarria is at increased risk from these conditions.
With respect to Plaintiff’s CMC, Dr. Venters declared that “CMC involves an abnormal, localized reaction of immune cells and requires evaluation for an underlying problem with the immune system that may be more widespread.” (ECF No. 57-2, PageID.1694.) Dr. Venters’ conditional language—that an evaluation may show a more widespread problem with the immune system—does not support a finding that Plaintiff is immunocompromised.
Accordingly, the Court will assess whether Plaintiff’s hypertension increases her risk of severe complication from COVID-19 such that a high risk of exposure constitutes a high risk of irreparable injury.
Defendants argue that the evidence does not show that Plaintiff’s hypertension increases her risk of serious complications from a COVID-
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19 infection. As Defendants note, the CDC recognizes “pulmonary hypertension,” but not general hypertension, as a “serious heart condition.” See Groups at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed Apr. 17, 2020). At best, evidence regarding non-pulmonary hypertension is unclear. In another publication, the CDC has referred to general hypertension as a risk factor. See Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, Centers for Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm. On May 9, 2020, the Honorable David M. Lawson held that non-pulmonary hypertension constituted a risk-factor for severe negative outcomes from COVID-19. Perez-Perez, 2020 WL 2305276, at *8. But on a March 27, Georgina Peacock, the lead of the CDC’s COVID-19 Response At-Risk Task Force, described the following with respect to hypertension: “We do have observational knowledge that there is an increased risk with hypertension, but we don’t know whether having hypertension alone does
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increase that risk for severe illness from COVID-19 . . . We are working to understand whether hypertension is an independent risk factor.” Caralyn Davis, CDC: Protect Staff With Underlying Conditions Against COVID-19, iAdvance Senior Care (Apr. 7, 2020), https://www.iadvanceseniorcare.com/cdc-protect-staff-with-underlyingconditions-against-covid-19/.
The Court cannot conclude, based on the record, that Plaintiff Rodriguez Salabarria’s hypertension increases her risk of severe complications such that a high risk of exposure to COVID-19 constitutes a high risk of irreparable injury absent an injunction. Nonetheless, the Court is concerned about the public health data suggesting that hypertension is the single most frequent comorbidity6 for patients hospitalized from COVID-19. See Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020,
6 At oral argument, counsel for Defendants argued that “comorbidity” in this instance referred not to the simultaneous presence of COVID-19 and hypertension, but rather to the presence of hypertension and another underlying health condition alongside COVID-19. The Court does not share Defendants’ understanding of this term, and it reads the medical evidence to show that for patients hospitalized with COVID-19, hypertension was the most frequently occurring underlying health condition, with or without any other underlying health conditions.
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Centers for Disease Control and Prevention (Apr. 17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm (identifying hypertension as most common underlying condition in adult patients hospitalized from COVID-19); Safiya Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area, J. of the Am. Medical Ass’n (last updated Apr. 24, 2020), https://jamanetwork.com/journals/jama/articlepdf/2765184/jama_richar dson_2020_oi_200043.pdf (identifying same).
Accordingly, the Court will order supplemental briefing on whether Plaintiff’s hypertension places her at increased risk of severe illness and/or death from a COVID-19 infection. The parties should focus their briefing on medical and scientific evidence released after March 27, 2020. The parties may also provide additional briefing on Plaintiff’s medical history and other underlying conditions.
Plaintiff Rosales Borboa Plaintiff Rosales Borboa suffers from asthma, for which he was hospitalized for two days approximately ten years ago. (ECF No. 44, PageID.1023.) At various times, the frequency of which the parties
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contest, Rosales Borboa has required the use of an inhaler and steroids to control his asthma. (Id. at PageID.1024; ECF No. 64, PageID.1812.)
The CDC explains that moderate to severe asthma increases the risk of severe illness and/or death from COVID-19. People with Moderate to Severe Asthma, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/asthma.html (last updated Apr. 2, 2020). The parties disagree as to whether Plaintiff Rosales Borboa’s asthma is moderate to severe.
Plaintiffs allege that “[t]o treat his asthma, Mr. Rosales Borboa was prescribed an Albuterol inhaler, which he used multiple times per week prior to his detention, and Prednisone, an immunosuppressant medication used to treat breathing problems.” (ECF No. 57, PageID.1676.) According to Dr. Venters, “[t]he frequency with which [Plaintiff Rosales Borboa] relies on his inhaler, and the recent need for oral steroids indicates that his asthma is not well controlled.” (ECF No. 57-2, PageID.1692.) Dr. Venters implies but does not conclude that asthma which is not well controlled is moderate to severe. (Id.) Defendants argue that “while detained for the last two months, he has
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not had any treatment for asthma, nor has he requested any.” (ECF No. 64, PageID.1812.) Moreover, Defendants explain that “Borboa’s asthma, as he stated at intake, is situational when he plays sports or gets too warm.” (Id.)
Critically, neither party provides a definition, medical or otherwise, of the phrase “moderate to severe.” The Court cannot apply traditional modes of statutory interpretation to discern the medical meaning of “moderate to severe,” and therefore the Court cannot make a finding with respect to the severity of Rosales Borboa’s asthma. Accordingly, the Court will order supplemental briefing on the meaning of “moderate to severe” and whether Plaintiff’s asthma qualifies as such. The parties may also address Plaintiff’s medical history and any other underlying health conditions.
2. Violation of Constitutional Rights Plaintiffs Alhalmi and Cardona Ramirez have additionally shown a high risk of irreparable injury in the form of infringement on their Fifth Amendment rights. Plaintiffs argue that “because of their underlying medical conditions which make them especially susceptible to severe infection from COVID-19, [they] confront immediate danger in violation
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of their Due Process rights.” (ECF No. 44, PageID.1042.) The finding that a constitutional violation is likely is sufficient for a court to find irreparable harm. See also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”); Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)); see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegations of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm).
Below, the Court finds Plaintiffs Alhalmi and Cardona Ramirez are likely to succeed on the merits of their Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)
Because the success of Plaintiffs’ Fifth Amendment claim hinges on the extent to which Plaintiffs’ underlying health conditions put them at increased risk of severe illness and/or death from COVID-19, the Court
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will determine whether Plaintiff Rodriguez Salabarria and Rosales Borboa have shown irreparable injury in the form of deprivation of their Fifth Amendment rights upon receiving the parties’ supplemental briefing.
B. Likelihood of Success on the Merits Plaintiffs bring a claim for “Violation of Fifth Amendment Right to Substantive Due Process: Impermissible Punishment and Inability to Ensure Reasonable Safety For the Medically Vulnerable.” (ECF No. 43, PageID.1000.) Because the Court orders supplemental briefing with respect to Plaintiff Rodriguez Salabarria and Rosales Borboa’s health conditions, the Court will address the likelihood of success on the merits only with respect to Plaintiffs Alhalmi and Cardona Ramirez. 1. Legal Standard The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
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a. Punishment or Deliberate Indifference Plaintiffs claim that their continued confinement violates their Fifth Amendment rights both as a form of “impermissible punishment” and for its “inability to ensure reasonable safety.” (ECF No. 43, PageID.1000.) In Bell v. Wolfish, the Supreme Court held that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” 441 U.S. 520, 535 (1979). The Court explained that “if a restriction or condition is not reasonably related to a legitimate goal–if it is arbitrary or purposeless— a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees.” Id. at 539. In Helling v. McKinney, the Supreme Court held that the Eighth Amendment guarantees inmates “reasonable safety.” 509 U.S. 25, 34 (1993). The Sixth Circuit has held that “pretrial detainees have a right to adequate medical treatment that is analogous to the Eighth Amendment rights of prisoners,” Watkins v. City of Battle Creek, 273 F.3d 682, 685–86 (6th Cir. 2001), and, accordingly, this type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Gov’t,
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709 F.3d 563, 568 (6th Cir. 2013). Eighth Amendment claims require a
showing of deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 835
(1994).
The Court has previously analyzed identical claims under only the
deliberate indifference standard. In converting Petitioner Malam’s
temporary restraining order into a preliminary injunction, the Court
reasoned:
The Eighth Circuit in Butler found that the deliberate indifference test, not the freedom from punishment test, applied to a plaintiff’s claim challenging the adequacy of precautionary measures to reduce the risk of infection: “The governmental duty to protect at issue in this case is not based on a pretrial detainee's right to be free from punishment but is grounded in principles of safety and general well-being.” 465 F.3d at 344. The court cited to the Supreme Court in DeShaney v. Winnebago County Dept. of Soc. Serv., which held: [“][W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.[”] 489 U.S. 189, 200. The deliberate indifference standard applies in this case.
(ECF No. 33, PageID.724–725.)
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Importantly, however, the Court also noted that because Petitioner Malam was likely to succeed on her deliberate indifference claim, “the Court need not determine whether the freedom from punishment standard also applies, and if it does, whether and to what extent it differs from the deliberate indifference standard.” (Id. at PageID.725.)
For the same reasoning reproduced above, the Court will analyze Plaintiffs’ claim through the lens of deliberate indifference. However, the Court will order supplemental briefing on whether and to what extent a freedom from punishment standard applies to Plaintiffs’ claims independent of a deliberate indifference standard.
b. Objective and Subjective Components Additionally, there remains an open question as to what the deliberate indifference standard requires Plaintiffs to show. In Villegas, the Sixth Circuit recognized that under Farmer v. Brennan, deliberate indifference requires a showing of an objective substantial risk of serious harm and a subjective culpable mental state. Villegas v. Metro. Gov’t, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). In 2016, the Supreme Court held that a pretrial detainee raising a Fourteenth Amendment excessive force claim satisfied his
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burden by showing “the force purposely or knowingly used against him was objectively unreasonable,” without regards to the mental state of any prison official. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). In Richmond v. Huq, the Sixth Circuit held that “this shift in Fourteenth Amendment deliberate indifference jurisprudence calls into serious doubt whether [a plaintiff] need even show that the individual defendantofficials were subjectively aware of [the plaintiff’s] serious medical conditions and nonetheless wantonly disregarded them.” 885 F.3d 928, 938 n.3 (6th Cir. 2018). And in Martin v. Warren Cty., the Sixth Circuit reiterated that “[w]hether an objective standard applies to pretrial detainee claims of deliberate indifference and what the standard entails are open questions.” No. 19-5132, 2020 WL 360436, at *4 n.4 (6th Cir. Jan. 22, 2020), reh’g denied (Feb. 4, 2020).
Despite this uncertainty, the Sixth Circuit has applied both objective and subjective analysis to deliberate indifference claims in at least two cases post-Kingsley. See J.H. v. Williamson Cty., 951 F.3d 709, 717, 722–23 (applying an objective test for solitary confinement claim but two-part objective and subjective test for deliberate indifference claim); Winkler v. Madison Cty, 893 F.3d 877 (2018) (applying two-part standard
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for deliberate indifference claim without citing Kingsley). The Court is unaware of any Sixth Circuit precedent applying Kingsley to hold that a deliberate indifference claim only requires an objective component. Absent more guidance from the Sixth Circuit, the Court will require Plaintiffs to show both the objective and subjective components of a deliberate indifference claim.
2. Objective Component The objective component of a deliberate indifference claim is satisfied by showing that “absent reasonable precautions, an inmate is exposed to a substantial risk of serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 F. App’x. 354, 361 (6th Cir.2013)).” Above, the Court found that Plaintiffs Alhalmi and Cardona Ramirez showed a high risk of irreparable injury in the form of severe illness and/or death from COVID-19 absent an injunction. The Court need not dwell on the distinctions between a high likelihood of irreparable harm and a substantial risk of serious harm—to the extent the former comes in the form of a risk to health or life, it satisfies the latter.
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Nonetheless, Defendants raise three arguments as to why Plaintiffs cannot satisfy the objective component.
i. Imminence Defendants argue that the risk of infection—regardless of its magnitude—cannot justify a finding that Plaintiffs will succeed on the merits because the risk is not imminent. Defendants point to the Supreme Court in Helling v. McKinney, on which this Court has previously relied. 509 U.S. 25 (1993). Defendants argue that Helling “requires that in order to pursue a constitutional claim for a future harm, the danger must be ‘sufficiently imminent.’” (ECF No. 52, PageID.1524 (citing Helling, 509 U.S. at 33-34).) In Defendants’ words, Although the Court did not require the plaintiff to show actual adverse effects from the secondhand smoke, it did require actual exposure to the allegedly harmful condition. . . . Nowhere in the decision did the Helling Court hold potential exposure to disease sufficient to establish standing for a constitutional violation, particularly where the risk of exposure would differ little from the risk if released.
(ECF No. 52, PageID.1525 (citation omitted).) Defendants made this argument at a time when “there [were] no
confirmed cases of COVID-19 at Calhoun.” (ECF No. 52, PageID.1525.) But as of May 11, 2020, Calhoun County Correctional Facility has at least
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one confirmed case of COVID-19. Moreover, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, Defendants cannot reasonably assert that the outbreak is—or will continue to be—limited to a single case. This change in factual circumstances alone is enough to rebut Defendants’ argument.
But even if the Court were to find that a confirmed case of COVID19 within the correctional facility did not constitute an imminent risk of exposure, Defendants misread Helling in two ways. First, they are wrong to insist that Helling “require[s] actual exposure.” Helling dealt with a prisoner who faced actual exposure to secondhand smoke at the time he filed his complaint. The question of whether potential or future exposure would similarly be sufficient to state a claim was not at issue in the case. Accordingly, nowhere did the Helling Court hold potential exposure to a disease insufficient to establish standing for a constitutional violation.
Second, and to the contrary, the Helling opinion does suggest that potential exposure to a future harm would be—and is here—sufficient to state a constitutional claim and support a finding of irreparable injury. As Helling states, “a remedy for unsafe conditions need not await a tragic event,” Helling, 509 U.S. at 33. The Helling Court cited favorably to Gates
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v. Collier, a Fifth Circuit opinion addressing when the risk of future injury was sufficient to state an Eighth Amendment claim. 509 U.S. at 34. In Gates, the court held that a prison’s insufficient inventory of firefighting equipment constituted an Eighth Amendment violation. 501 F.2d 1291 (5th Cir. 1974). The court noted that “[a]t most camps there is a lack of adequate firefighting equipment making it, as stated by the Penitentiary Superintendent, ‘almost impossible to put out a fire at [the detention facility] with the present water system and the present firefighting equipment.’” Id. at 1301. It would almost be absurd to suggest that a prisoner would have needed to wait for a fire to break out in the facility prior to being able to allege irreparable injury. Instead, the Gates court recognized that the risk of fire itself was enough.
So too here. COVID-19 does not respect prison walls. The raging global pandemic outside of Calhoun County Correctional Facility and a confirmed case within the facility pose a serious risk to those inside. Accordingly, the Court concludes again that the risk of COVID-19 infection to Plaintiffs Alhalmi and Cardona Ramirez constitutes a substantial risk of serious harm.
ii. Compliance with Policies
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At oral argument, Defendants argued that the Court should not consider any failure of the Calhoun County Correctional Facility to implement CDC or ICE Guidance when determining whether Plaintiffs have shown the objective component of their deliberate indifference claim. If Plaintiffs were challenging only the issuance of Defendants’ policy as deliberately indifferent, Defendants’ argument might have merit. But Plaintiffs’ challenge is broader than contesting ICE guidance: Plaintiffs challenge their continued detention on the grounds that no conditions of confinement can guarantee their reasonable safety. Accordingly, the question for the Court is not whether Defendants have been deliberately indifferent to Plaintiffs’ health in creating COVID-19related policies and precautions, but whether Defendants, who do not argue that Plaintiffs pose a danger to the community or would be flight risks, have been deliberately indifferent to Plaintiffs’ medical needs by failing to release them given the actual conditions at the Calhoun County Correctional Facility. Accordingly, the exact level of the risk at the correctional facility, as informed by the level of compliance with any precautionary policies, goes both to the nature of the harm faced by Plaintiffs and to Defendants’ state of mind in declining to release them.
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iii. Society’s Tolerance of Risk to Plaintiffs Defendants properly note that in addition to weighing the seriousness of the risk faced by Plaintiffs, the Court must also “‘assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency’—that is, it ‘is not one that today’s society chooses to tolerate.’” Villegas v. Metro. Gov’t, 709 F.3d at 568-69 (citing Helling v. McKinney, 509 U.S. 25, 36 (1993)). Defendants argue that “where society is beginning to reduce restrictions and subject society-at-large to that same risk of exposure to COVID-19,” Plaintiffs may not be able to satisfy this requirement. (ECF No. 64, PageID.1814.) Defendants argument is misguided. First, significant portions of the country remain on lockdown. In Michigan, where Plaintiffs are detained and which now reports a total of 48,021 COVID-19 cases and 4,674 deaths from COVID-19, see Michigan Data, Michigan.gov, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173--,00.html (last updated May 12, 2020), Governor Gretchen Whitmer recently extended the Stay Home, Stay Safe executive order, under which Michigan residents “must not leave their homes except to run critical
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errands, to engage in safe outdoor activities, or to go to specified

jobs,” until May 28, 2020. Governor Whitmer Extends Stay Home, Stay

Safe Order, Reopens Manufacturing as Part of Her MI Safe Start Plan,

Michigan.gov

(May

7,

2020),

https://www.michigan.gov/whitmer/0,9309,7-387-90487-528452--

,00.html.

Second, even where restrictions have been relaxed more broadly,

there are continued protections for medically vulnerable people.

Although Georgia’s shelter-in-place order expired for most Georgia

residents on April 30, 2020, Governor Brian Kemp issued a new executive

order “requiring medically fragile and elderly Georgians to continue to

shelter in place through June 12, 2020.” Gov. Kemp Extends Protections

for Vulnerable Georgians, Releases Guidance for Businesses, Georgia.gov

(Apr. 30, 2020), https://gov.georgia.gov/press-releases/2020-04-30/gov-

kemp-extends-protections-vulnerable-georgians-releases-guidance.

Additionally, Governor Kemp ordered “long-term care facilities –

including nursing homes, personal care homes, assisted living facilities,

and similar community living homes – to utilize enhanced infection

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control protocols, ensure safer living conditions, and protect residents and staff from coronavirus exposure.” Id.
Finally, Plaintiffs are not at “the same risk of exposure” to COVID19 as the general population. Plaintiffs are currently in communal confinement. As previously set forth, “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as [Plaintiffs] within the CCCF facility.” (ECF No. 23, PageID.559.)
Defendants cannot show that society would tolerate Plaintiffs’ exposure to COVID-19. To suggest that the public would tolerate this risk demeans Plaintiffs’ dignity and humanity.
3. Subjective Component The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” Richko, 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th
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Cir. 2014)). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Id. at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Defendants do not contest that Plaintiffs have satisfied the first two prongs of Richko’s subjective component test. The magnitude of the risk from COVID-19 to Plaintiffs Alhalmi and Cardona Ramirez, considering their underlying health conditions, leads the Court to conclude that it is obvious and, consequently, that Defendants are aware of it.
Instead, Defendants argue that because they are responding reasonably to the COVID-19 pandemic, they cannot be said to have disregarded the risk to Plaintiffs. (ECF No. 52, PageID.1533.) Because Defendants have not taken specific precautions to protect medically vulnerable detainees, the Court finds that Defendants have acted unreasonably and have disregarded the risk of COVID-19 to Plaintiffs Alhalmi and Cardona Ramirez.
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Since Defendants first filed a brief in this case on April 3, 2020, they have argued that the reasonability of their response precludes their liability. (See ECF No. 11, PageID.180 (“[T]he government has not been deliberately indifferent and instead has taken reasonable precautions to reduce the risk.”).) Defendants argue that “the [C]onstitution does not require or allow judicial inquiry to determine the optimal policy that ICE can employ, assuming no resource constraints or competing governmental interests and priorities, to eliminate risk to Petitioners. The [C]onstitution only requires the precautions taken to be ‘reasonable’ under a deliberate indifference analysis.” (ECF No. 52, PageID.1537)
Defendants rely on two Circuit Court cases for this proposition. See Wooler v. Hickman Cty., 377 F. App’x 502, 503 (6th Cir. 2010) (finding “consistent efforts to reduce [the] risk” of contagion of an infectious skin disease precluded “a finding of deliberate indifference”); Butler v. Fletcher, 465 F.3d 340, 345-46 (8th Cir. 2006) (finding precautions to mitigate the risk of tuberculosis reasonable, even if there were other reasonable measures that could have been taken).
The Court has previously found Wooler and Butler distinguishable because of the scope of the situation today. COVID-19 is neither MRSA nor tuberculosis. Wooler and Butler suggest
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precautions can reasonably mitigate the risk of tuberculosis or MRSA in conditions of communal confinement. COVID19 is a global pandemic of unparalleled scope, and the public health evidence available to the Court suggests that communal confinement cannot ensure detainees reasonable safety from infection.
(ECF No. 33, PageID.702.)
Defendants’ argument fails for the same reason that their
argument regarding risk of irreparable injury fails: a reduction in risk
does not automatically render Defendants’ response reasonable. Instead,
Plaintiffs have provided extensive evidence that the reduction in risk is
insufficient for the precautions to be deemed reasonable with respect to
medically vulnerable detainees7: Dr. Venters explains,
The April 10 ERO Pandemic Response Requirements appear to identify patients at high-risk of serious illness from COVID-19 for the purpose of docket review, but critically fail to encourage or require any higher level of protection that facility officials must provide these detainees in order to protect them from contracting COVID-19.
7 In limiting its finding of Defendants’ mental state with respect to medically vulnerable detainees, the Court does not hold at this time that Defendants’ precautions are a reasonable response to the risk posed to the general population. The Court will consider that question should it find that Plaintiffs Rodriguez Salabarria and Rosales Borboa are not at heightened risk of serious illness and/or death from COVID-19 or when it is otherwise presented to the Court for adjudication.
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(ECF No. 44-4, PageID.1085); Dr. Jonathan Golob, Assistant Professor at
the University of Michigan School of Medicine specializing in infectious
diseases and internal medicine, writes that
vulnerable people . . . living in an institutional setting, such as a prison, or jail, or an immigration detention center, with limited access to adequate hygiene facilities, limited ability to physically distance themselves from others, and exposure to potentially infected individuals from the community are at grave risk of severe illness and death from COVID-19.
(ECF No. 44-2, PageID.1052); Dr. Robert Greifinger, a physician
with more than thirty years of experience specific to correctional
facilities, declares that
ICE’s response has made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become symptomatic. This will lead to unnecessary illness and death for the people most vulnerable to this disease. ICE is walking willingly into a preventable disaster by keeping high-risk and vulnerable patients in detention facilities during the rapid spread of COVID-19. . . . In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
(ECF No. 44-3, PageID.1064 –1065); Dora Schriro, a civil servant
with significant correctional and immigration experience, including
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as former Senior Advisor to DHS Secretary Janet Napolitano, opines that
[b]ased on my experience at DHS, ICE exercises discretion to release or decline to detain medically vulnerable individuals, even when those individuals are, per statute, mandatorily detained. Regardless of statute, ICE has the capacity to, and in fact does, release medically vulnerable individuals when necessary for public health. (ECF No. 44-5, PageID.1161.) She concludes that “best correctional and correctional health care practice requires, at a minimum, the preemptive release of individuals who are at-risk of serious illness or death if they become infected with COVID-19.” (Id. at PageID.1169.) As the extensive body of public health evidence on the record clearly demonstrates, a failure either to implement precautions specific to medically vulnerable detainees or to release them constitutes an unreasonable response. Defendants point to recent Fifth and Eleventh Circuit opinions to show that the record nonetheless does not include evidence of deliberate indifference. In Valentine v. Collin, the Fifth Circuit stayed a district court’s preliminary injunction requiring a correctional facility to impose
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specific precautionary measures against COVID-19. No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020)) The court held,
Though the district court cited the Defendants’ general awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively believe the measures they are taking are inadequate. To the contrary, the evidence shows that TDCJ has taken and continues to take measures— informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus. . . . Although the district court might do things differently, mere “disagreement” with TDCJ’s medical decisions does not establish deliberate indifference.
Id. at *4 (citations omitted). The court concluded that in finding objectively “inadequate measures as dispositive of the Defendants’ mental state,” “the district court . . . collapsed the objective and subjective components of the Eighth Amendment inquiry.”
In Swain v. Junior, the Eleventh Circuit cited to Valentine and stayed a similar injunction on the grounds that “the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate.” No. 20-11622, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020).
Contrary to Defendants’ suggestion and distinct from Valentine and Swain, the record before the Court demonstrates that Defendants are
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aware that medically vulnerable detainees require additional protection,

but nonetheless have declined to act. “Because government officials do

not readily admit the subjective component of this test, it may be

demonstrated in the usual ways, including inference from circumstantial

evidence. . . . ” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med.

Servs., 555 F.3d 543, 550 (6th Cir. 2009)).

At the Court’s May 7, 2020 videoconference hearing, Defendants

conceded that they have not implemented any policies specific to the

protection of medically vulnerable detainees, arguing instead that

general precautionary measures serve to protect the higher risk

population. CDC guidance for correctional and detention facilities does

not address the specific needs of medically vulnerable detainees; it only

notes that “[i]f the number of confirmed cases exceeds the number of

individual medical isolation spaces available in the facility, be especially

mindful of cases who are at higher risk of severe illness from COVID-19.”

Interim Guidance on Management of Coronavirus Disease 2019 (COVID-

19) in Correctional and Detention Facilities, Centers for Disease Control

and

Prevention,

https://www.cdc.gov/coronavirus/2019-

ncov/community/correction-detention/guidance-correctional-

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detention.html (last reviewed May 7, 2020). Nor does ICE guidance fill
the gap; to the extent that ICE Guidance addresses medically vulnerable
detainees, it contemplates considering release as an option:
Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate. ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.

(ECF No. 52-7, PageID.1591.) Indeed, as of April 16, 2020, ICE had

released almost 700 noncitizen civil detainees nationwide. Matt Katz,

ICE Releases Hundreds of Immigrants as Coronavirus Spreads in

Detention

Centers,

NPR

(Apr.

16,

2020)

https://www.npr.org/sections/coronavirus-live-

updates/2020/04/16/835886346/ice-releases-hundreds-as-coronavirus-

spreads-in-detention-centers.

On the one hand, Defendants are aware of the heightened risk

posed by COVID-19 to medically vulnerable detainees, and as such ICE

has already released hundreds of people from ICE custody. On the other,

Defendants have not—and seemingly will not—adopt precautions

specific to this vulnerable population that public health evidence shows 48

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to be necessary. And despite five opportunities to do so in this case alone, Defendants have not provided the Court with the declarations of any medical professional or public health expert who can reconcile these two conflicting positions. As Defendants explained in another case challenging the constitutionality of civil detention at the Calhoun County Correctional Facility, “In issuing guidance, ICE relied on epidemiologists and also convened a working group between medical professionals, disease control specialists, detention experts, and field operators to identify additional enhanced steps to minimize the spread of the virus.” Zaya v. Adducci, Case No. 20-10921 (E.D. Mich. Apr. 23, 2020), ECF No. 10 at PageID.700 (internal citation omitted). Defendants fail to acknowledge or address the evidence submitted by Plaintiffs and the weight of public health evidence recognizing that absent specific precautions, Plaintiffs’ release constitutes the only reasonable response to an extraordinary and deadly pandemic. Plaintiffs Alhalmi and Cardona Ramirez have shown the subjective component of their deliberate indifference claim.
Finally, the Court reiterates that at this stage of the litigation, it employs a balancing test to determine if relief is warranted. “[The
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probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006) (internal quotations omitted). Plaintiffs have shown both a high likelihood of irreparable injury and a near certainty of success with respect to the objective component of their deliberate indifference claim; Defendants only raise a significant challenge to the claim’s subjective component. Because the merits will turn on Defendants’ state of mind, Plaintiffs need not continue to be exposed to conditions of confinement which present a substantial risk of serious harm while the Court further adjudicates that issue.
C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Defendants do here, the final two factors—the balance of equities and the public interest—merge. “The government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
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The Court finds that the public has an interest in preserving Plaintiffs’ constitutional rights and in protecting public health. See G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994) (“[I]t is always in the public interest to prevent the violation of a party's constitutional rights); Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Defendants do not address the public interest in their response (ECF No. 52) or sur-reply (ECF No. 64). Nor do Defendants argue that any named Plaintiff would either pose a danger to the community or be a flight risk upon release.
Accordingly, “[t]he public interest and balance of equities demand that the Court protect [Plaintiffs’] constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to [Plaintiffs’], is unconstitutional.” (ECF No. 23, PageID.574.)
Because all four factors favor granting injunctive relief for Plaintiffs Alhalmi and Cardona Ramirez, the Court grants a preliminary injunction requiring their immediate release.
IV. Other Requested Relief
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In their reply brief, Plaintiffs requested for the first time five additional forms of relief: first, that the Court order that “within the next twenty-four hours, Ms. Zhang be tested for COVID-19 and seen by a physician” (ECF No. 57, PageID.1667); second, that the Court order “the attending physician to provide a report to Court about whether, because of Ms. Zhang’s medical condition, she should be released” (id.); third, that the Court “order Defendants to provide the information as to what steps Defendants took and plan to take to prevent infection (a) during the transfer; (b) once Mr. Medina Euceda arrived in Louisiana; and (c) during removal” (id. at PageID.1670); fourth, that the Court “require Defendants immediately to update the Court if there are any changes with respect to Mr. Medina Euceda’s scheduled removal” (id. at PageID.1670–1671); and fifth, that the Court order “that Defendants not transfer any further named petitioners to a different detention center without the Court’s permission, and that any request for such permission should include information about the conditions in the facility to which the person is being transferred, and precautions during transfer.” (Id. at PageID.1671.)
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The Court is unaware of legal authority that would allow it, in this instance, to grant relief unrelated to the merits of Plaintiffs’ claims and not requested in a pleading or motion. The Federal Rules of Civil Procedure contemplate that a claim for relief must appear in a pleading. Fed. R. Civ. Proc. 8(a). This procedural requirement allows for the parties to fully brief any resultant issues and ensures that the Court can make a reasoned determination. Defendants have only had a brief opportunity to address Plaintiffs’ new requests in a sur-reply. (ECF No. 64.)
Accordingly, each additional request for relief is denied without prejudice. Plaintiffs may refile their requests in the form of an amended pleading or a motion for injunctive relief or discovery, as they deem appropriate.
V. Conclusion For the reasons stated above, the Court GRANTS a preliminary injunction requiring Plaintiffs Alhalmi and Cardona Ramirez’ immediate release from ICE Custody. Plaintiffs will be subject to the following restrictions: Plaintiffs are subject to fourteen days of home quarantine; Plaintiffs must comply with all Michigan Executive Orders; and Plaintiffs must appear at all hearings pertaining to their removal
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proceedings. Respondents may impose other reasonable nonconfinement

terms of supervision.

Respondents are further RESTRAINED from arresting Petitioner

for civil immigration detention purposes until the State of Emergency in

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Court orders supplemental briefing with respect to Plaintiff

Salabarria and Plaintiff Borboa’s health conditions and the applicability

of a freedom from punishment standard to Plaintiffs’ claims. The parties

may each submit a responsive filing, of no more than fifteen pages, by

May 18, 2020.

The Court denies without prejudice Plaintiffs’ requests for relief

other than immediate release.

IT IS SO ORDERED.

Dated: May 12, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 12, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,
Plaintiff,
- against -
REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; HEIDI E. WASHINGTON, in her capacity of Director of Michigan Department of Corrections Calhoun Correctional Center,

No. 2:20-cv-10829-JEL-APP

Defendants,

And

RUBY BRISELDA ESCOBAR; AMER TOMA, Plaintiff-Intervenors.

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR INJUNCTIVE RELIEF

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TABLE OF CONTENTS Page
INTRODUCTION .....................................................................................................1 PARTIES....................................................................................................................4 JURISDICTION AND VENUE ................................................................................7 FACTS .......................................................................................................................7
A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to Older Persons and Those with Certain Medical Conditions ...............................................................................7
B. Plaintiffs Face an Elevated Risk of COVID-19 Transmission ...........11 C. People Most Vulnerable to COVID-19 Should Be Released
from ICE Detention .............................................................................17 LEGAL BACKGROUND .......................................................................................20
A. Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody ................................................................................................20
B. Petitioners Held in Post-Order Custody Must Be Released Because, as a Result of the COVID-19 Crisis Impact on International Travel and Removals, Their Removal Is Not Significantly Likely in the Reasonably Foreseeable Future ...............23
C. ICE Has the Authority to Release Detained People in Its Custody ................................................................................................32
D. This Court Has the Authority to Order Plaintiffs’ Release .................33 CLAIMS FOR RELIEF ...........................................................................................35 PRAYER FOR RELIEF ..........................................................................................37
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TABLE OF AUTHORITIES
CASES Basank v. Decker,
2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)..............................................16, 24 Bell v. Wolfish,
441 U.S. 520 (1979)............................................................................................22 Brown v. Plata,
563 U.S. 493 (2011)......................................................................................23, 35 Calderon Jimenez v. Wolf,
No. 18-10225-MLW, Dkt. 507 (D. Mass. Mar. 26, 2020) .................................24 Coronel v. Decker,
No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ..................17, 24 DeShaney v. Winnebago County Dept. of Soc. Servs.,
489 U.S. 189 (1989)............................................................................................22 Duran v. Elrod,
713 F.2d 292 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) ....................35 Hamama v. Adducci,
349 F.Supp.3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020) .....................................................................................33 Helling v. McKinney, 509 U.S. 25 (1993)..........................................................................................4, 22 Hernandez v. Wolf, No. 20-60017-TJH (C.D. Cal. Apr. 1, 2020)......................................................23 Hutto v. Finney, 437 U.S. 678 (1978)......................................................................................23, 35 J.H. v. Williamson Cty., Tennessee, 951 F.3d 709 (6th Cir. 2020) ..............................................................................22
ii

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Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003) ........................................................................5
Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) ..............................................................................38
Thakker v. Doll, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020) ............................................17, 22, 23
Turner v. Stumbo, 701 F.2d 567 (6th Cir. 1983) ..............................................................................22
Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................25, 26, 38
STATUTES 5 U.S.C. § 504..........................................................................................................39 8 C.F.R. § 212.5(b)(1)..............................................................................................34 8 U.S.C. § 1103..........................................................................................................6 8 U.S.C. § 1231............................................................................................25, 38, 39 8 U.S.C. § 1231(a)(2)...............................................................................................25 8 U.S.C. § 1231(a)(3)...............................................................................................25 8 U.S.C. § 1231(a)(6)...................................................................................26, 27, 37 28 U.S.C. § 1331........................................................................................................7 28 U.S.C. § 1346........................................................................................................7 28 U.S.C. § 1391........................................................................................................7 28 U.S.C. § 2241........................................................................................................7 28 U.S.C. § 2412......................................................................................................39 Equal Access to Justice Act .....................................................................................39
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OTHER AUTHORITIES
Coronavirus: Travel Restrictions, border shutdowns by country, AL JAZEERA (Apr. 4, 2020) https://www.aljazeera.com/news/2020/03/coronavirus-travelrestrictions-border-shutdowns-country-200318091505922.html.................19, 31
Full List, BUS. INSIDER https://www.businessinsider.com/coronavirusglobal-airlines-stopping-flights-suspending-operations-2020-3 (Apr. 1, 2020)......................................................................................................28
HealthAlert: US Embassy San Salvador, El Salvador, U.S. EMBASSY IN EL SALVADOR, https://sv.usembassy.gov/health-alert-u-sembassy-san-salvador-el-salvador-march-12-2020/ ........................................... 19
Immigration Court Backlog Tool, TRAC REPORTS, INC.. https://trac.syr.edu/phptools/immigration/court_backlog/ .................................30
IMMIGRATION COURT PRACTICE MANUAL, DEPARTMENT OF JUSTICE, CHAPTER 4 (2008) ..............................................................................................31
Information, U.S. EMBASSY & CONSULATES IN IRAQ, https://iq.usembassy.gov/covid-19-information/ ..........................................20, 33
Iraq, WORLD HEALTH ORGANIZATION, http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid19-in-iraq.html ....................................................................................................21
Keith Griffin, American Airlines Cuts International Flights by 90% Through May – but Vows NOT to Halt Domestic Service During the Coronavirus Crisis, DAILY MAIL, https://www.dailymail.co.uk/news/article-8186105/AmericanAirlines-cuts-international-flights-90-May.html (Apr. 3, 2020) ........................28
Kelly Yamanouchi, Delta Says it Still Flies to All Points in its Domestic Network, ATLANTA JOURNAL-CONSTITUTION, https://www.ajc.com/blog/airport/delta-says-still-flies-all-airportsits-domestic-network/Rym2MyGFFHdanXuKP7VPpK/ (Apr. 3, 2020) ...................................................................................................................28
iv

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MARK JEBSON, U.S. IMMIGRATION JUDGE, STANDING ORDER: TELEPHONIC APPEARANCE DUE TO COVID-19 IN DETAINED CASES BEFORE JUDGE MARK JEBSON IN THE DETROIT IMMIGRATION COURT (MAR. 26, 2020) ..................................................................................................31
REUTERS, https://www.reuters.com/article/health-coronavirus-elsalvador-airport/san-salvador-airport-to-be-closed-to-passengerspresident-says-idUSL1N2BA20V ......................................................................19
U.S. Embassy in El Salvador, Current Information for U.S. Citizens in El Salvador (Apr. 4, 2020) https://sv.usembassy.gov/covid-19information .......................................................................................................... 32
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INTRODUCTION 1. Petitioner-Plaintiffs (“Plaintiffs”) are immigration detainees being held at Calhoun County Correctional Center (“Calhoun”) who are particularly vulnerable to serious illness or death if infected by COVID-19, and who face a heightened risk of contracting the virus unless they are released immediately. 2. The novel coronavirus that causes COVID-19 has quickly led to a global pandemic. As of April 4, 2020, over 1,056,159 people worldwide have received confirmed diagnoses of COVID-19, and over 57,206 of those people have died. There is no vaccine against COVID-19, and there is no known cure. No one is immune from contracting the illness. COVID-19 is most likely to cause serious illness and elevated risk of death for older adults and those with certain underlying medical conditions or disease. 3. The COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and can damage tissues in other vital organs including the heart and liver. Patients with serious cases of COVID-19 require advanced medical support, including positive pressure ventilation and extracorporeal mechanical oxygenation in intensive care. That treatment can require the use of specialized equipment, like ventilators. The pandemic has put ventilators in high demand and short
1

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supply around the world, and has even led to shortages of less specialized equipment such as face masks, gloves, and other personal protective equipment (“PPE”). Patients who do not die from serious cases of COVID19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity. The only known effective measures to reduce the risk of serious illness or death caused by COVID-19 for vulnerable people are social distancing and improved hygiene. As a result, unprecedented public health measures are being undertaken in all fifty states and around the world.
4. People in enclosed group environments, where they live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes. This problem is particularly acute with respect to people who are confined in jails and other correctional facilities, for whom it is virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission, even with the best-laid plans. The enormity of the dangers faced by people in such facilities has become selfevident as more of them are testing positive for COVID-19 with each passing day. For instance, at the Rikers Island jail in New York City, the number of confirmed cases jumped from one to over 200 in roughly 12 days.
2

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5. For this reason, leading public health experts have recommended
the prompt release from custody of people such as Plaintiffs who are most
vulnerable to COVID-19, protecting those with the greatest vulnerability to
COVID-19 from transmission of the virus, and also allowing for greater risk
mitigation for all people held or working in the jail. Release of the most
vulnerable people such as Plaintiffs also reduces the burden on the region’s
limited health-care infrastructure, as it lessens the likelihood that an
overwhelming number of people will become seriously ill from COVID-19 at
the same time.
6. Plaintiffs are older adults and/or have underlying medical
conditions that create a high risk of serious COVID-19 infection.1 If they
continue to be detained at Calhoun during the current outbreak of COVID-19,
1 The underlying medical conditions that create a high risk of serious COVID-19 infection include, but are not limited to: blood disorders, such as sickle cell disease or taking blood thinners; chronic kidney disease; chronic liver disease, including cirrhosis and chronic hepatitis; cancer or cancer treatments; organ or bone marrow transplant; individuals taking immunosuppressant medications; HIV or AIDS; current or recent pregnancy in the last two weeks; diabetes; inherited metabolic disorders and mitochondrial disorders; heart disease, including coronary artery disease, congenital heart disease, and heart failure; lung disease, including asthma and COPD (chronic bronchitis or emphysema); neurological and neurologic development conditions such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury; severe obesity (body mass index [BMI] of 40 or higher); and any other condition or treatment that weakens the immune response.
3

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they face a danger that is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993).
7. Accordingly, this Court should issue a Writ of Habeas Corpus and order Plaintiffs’ immediate release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause or, in the alternative, issue injunctive relief ordering Defendants to release Plaintiffs immediately, with appropriate precautionary public health measures, on the grounds that their continued detention violates the Due Process Clause.
PARTIES 8. Plaintiff Ruby Briselda Escobar is a citizen of El Salvador who has been detained by Immigration & Customs Enforcement (“ICE”) at Calhoun since November 2018.
As a consequence, she is at high risk for severe illness or death if she contracts COVID-19.
9. Plaintiff Amer Toma is a citizen of Iraq who was detained by ICE in Monroe County Jail from September 21, 2019 to February, 2020, at
4

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which point he was moved to Calhoun where he remains today. Mr. Toma is 55 years old. Mr. Toma
As a consequence, he is at high risk for severe illness or death if he contracts COVID-19.
10. Respondent-Defendant Rebecca Adducci is the Detroit District Director of ICE. In that position, she is responsible for carrying out ICE’s immigration detention operations at Calhoun. Defendant Adducci is a legal custodian of Plaintiffs, and the proper respondent for a habeas petition. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). She is sued in her official capacity.
11. Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. In that position, he is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
12. Defendant Chad Wolf is Acting Secretary of the U.S. Department of Homeland Security. In that position, he is responsible for the
5

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enforcement of the immigration laws and supervises Ms. Adducci at ICE Detroit Field Operations. Defendant Wolf is a legal custodian of Plaintiffs. He is sued in his official capacity.
13. Defendant William P. Barr is Attorney General of the United States and chief officer of the U.S. Department of Justice. He is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, routinely does and transacts business in the Eastern District of Michigan, and is a legal custodian of Plaintiff. He is sued in his official capacity.
14. Defendant ICE is a federal law enforcement agency within the U.S. Department of Homeland Security. ICE is responsible for criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations, a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.2
2 The petition/complaint filed by Janet Malam, in which petitioners/plaintiffs here are intervening, named Matthew T. Albence, Chad Wolf, William P. Barr, and ICE as Respondent-Defendants. Intervenors seek injunctive and declaratory, but not habeas relief, from those defendants. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). The petition/complaint filed by Ms. Malam also named Michigan Department of Corrections Director Heidi E. Washington as a Respondent/Defendants. Intervenors do not bring claims against Ms. Washington.
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JURISDICTION AND VENUE 15. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction) and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 16. Venue lies in the U.S. District Court for the Eastern District of Michigan, the judicial district in which Plaintiffs are currently in custody. Venue is proper in the Eastern District of Michigan under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides.
FACTS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or
Death, to Older Persons and Those with Certain Medical Conditions 17. COVID-19 is a coronavirus that has reached pandemic status. As
of April 4, 2020, at least 1,056,159 people worldwide have confirmed diagnoses, including over 241,703 people in the United States. Over 57,206 people have died as a result of COVID-19 worldwide, including at least 5,854 in the United States. The transmission of COVID-19 is expected to grow exponentially.
18. Older people and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain
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underlying medical conditions increase the risk of serious COVID-19 disease for people of any age.
19. In many people, COVID-19 causes fever, cough, and shortness of breath. But for older people, as well as those with medical conditions that increase the risk of serious COVID-19 infection, shortness of breath can be severe. Moreover, the COVID-19 virus can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases can cause a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle, which can also affect the heart’s electrical system, reducing the heart’s ability to pump. Reduced pumping can lead to rapid or abnormal heart rhythms in the short term, and to long-term heart failure that limits exercise tolerance and the ability to work. In addition, COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine-release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.
20. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
8

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21. Even some younger and healthier people who contract COVID19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and, in extreme cases, extracorporeal mechanical oxygenation. But people in higher risk categories, such as Plaintiffs, will need advanced support, which requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians. This level of support can quickly exceed local health-care resources.
22. The need for care, including intensive care, and the likelihood of death, are much higher from COVID-19 infection than from influenza. Sources differ, but all are grave: sources report fatality rates ranging from nearly 2% to over 15% for populations at high risk for complications from COVID-19, like the elderly or those with preexisting conditions. Moreover, recent studies estimate that the COVID-19 fatality rate for the general population ranges from six to thirteen times as high as a severe seasonal influenza fatality rate, even in advanced countries with highly effective healthcare systems.
23. Patients in high-risk categories who do not die from COVID-19 often experience a prolonged recovery, including the need for extensive
9

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rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity.
24. There is no vaccine against COVID-19, nor is there any known medication to prevent or treat infection from COVID-19. On March 26, 2020, Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases (NIAID), estimated that a vaccine could be developed in 18 months. This estimation is optimistic. Vaccines typically take between eight and 10 years to develop. Vaccines usually must be tested in four phases before they attain regulatory approval: (1) animal testing, (2) small-group human testing to assess safety and monitor immune response, (3) mediumsized group testing to assess members of at-risk groups, and (4) large-scale testing on thousands of people. Moreover, more time is needed after approval to distribute the vaccine across the country. With these long trials and distribution schedules in mind, other experts have expressed reservations about the 18-month estimate given by Dr. Fauci.
25. The only known effective measures to reduce the risk of illness, or death from COVID-19 to vulnerable people are to prevent them from being infected in the first place. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant
10

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hygiene, including washing hands with soap and water, are the only known effective measures for protecting vulnerable people from COVID-19.
26. Projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the United States alone. B. Plaintiffs Face an Elevated Risk of COVID-19 Transmission
27. As of April 4, 2020, there were 12,744 confirmed cases of COVID-19 and 479 deaths from COVID-19 in Michigan.
28. The COVID-19 outbreak in Michigan has resulted in unprecedented health measures to facilitate and enforce social distancing. On March 24, Governor Gretchen Whitmer issued Executive Order 2020-21, suspending through April 13 all activities unnecessary to sustain or protect life. The order requires employees to work from home unless they are considered “essential” or they work in jobs related to public safety, health care, or other critical industries. The order also requires individuals who leave their home to adhere to social distancing measures recommended by the CDC, including “remaining at least six feet away from people outside the individual’s household to the extent feasible under the circumstances.”
11

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29. The Michigan Department of Corrections has already placed four prisons on partial lockdown because of the rising number of inmates testing positive for the virus. It is highly likely, if not inevitable, that COVID-19 will reach Calhoun if it is not already present.
30. Indeed, over the past two weeks, hundreds of COVID-19 diagnoses have been confirmed at local, state, and federal correctional facilities across the United States. In Michigan, press reports say that at least 184 prisoners and 38 corrections staffers have contracted COVID-19 across the Department of Corrections’ 29 facilities. The problem is almost certainly worse than reported given the dearth of available testing in such facilities.
31. The conditions at correctional facilities such as Calhoun, which are enclosed group environments where inmates live and sleep in close proximity, pose a heightened public health risk for the spread of COVID-19. Other enclosed group environments, such as cruise ships and nursing homes, have seen extremely high COVID-19 transmission rates. The danger is even greater at Calhoun, where inmates are rarely more than six feet apart, scant medical resources are available, and many detainees are at high risk of serious infection.
32. At Calhoun, Plaintiffs and other detainees are kept together in “pods” containing groups of seventy people, who sleep, eat, and live in closely
12

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confined quarters. Detainees sleep close together in bunkbeds near communal tables and chairs with shared air circulating in the pod. Similarly, detainees share a limited number of telephones and bathrooms, among other items in the facility. They are transported throughout the facility in close proximity. They interact with individuals from other pods in court, in the legal visiting areas, in the hallways, in the recreation area, and even while waiting to get their required medications. Detainees face the further risk of disease transmission through their work, as many work cleaning the kitchen, the laundry area, the bathrooms, and their own pods. Many detainees have also reported concerns about inadequate hygienic practices.
33. Jails like Calhoun also lack the medical infrastructure necessary to address the spread of infectious disease and treatment of people most vulnerable to illness in detention. During the H1N1 influenza epidemic in 2009, for example, jails and prisons were sites of severe outbreaks. Monroe County Jail and Calhoun each experienced mumps outbreaks just last year. News reports suggested an ICE detainee from Guatemala connected the outbreak between both facilities when the detainee was transferred between the Monroe County Jail and Calhoun. Calhoun confirmed at least two cases, and news outlets suggested that “several inmates” at both jails were infected.
13

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34. The current methods implemented by the Michigan Department of Corrections and Calhoun are not enough to protect Plaintiffs or other vulnerable inmates from COVID-19. Even though the Michigan Department of Corrections will require inmates and prison employees to wear masks, the Michigan Department of Corrections does not currently have enough inventory for all prisoners and staffers and might not have enough masks until the end of next week. Given the rapid spread of COVID-19, many inmates— including vulnerable inmates like Plaintiffs—could contract COVID-19 in that timeframe. Calhoun also says it is requiring staff to have their temperatures taken when they arrive at work, but that is insufficient for a virus like COVID-19 because infected persons may be asymptomatic but still contagious.
35. Given the even greater risk of infection posed by COVID-19, and the fact that inmates cannot engage in proper hygiene and isolate themselves from infected residents or staff, it is only a matter of time until the virus reaches Calhoun and rapidly infects the inmates and detainees, including Plaintiffs. The early evidence bears this out: for example, the rate of infection in New York City jails is more than seven times as high as the rate of infection in New York City overall. Indeed, it may be that the virus is already present at Calhoun and that it has already begun to spread.
14

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36. The staff at jails like Calhoun also have a higher risk of contracting coronavirus due to the lack of protective gear and the impossibility of social distancing. As of Wednesday morning, at least twenty five prison staff in Michigan had already tested positive for coronavirus. On Tuesday, a corrections transportation officer in Detroit died after contracting COVID-19. Accordingly, Michigan detainees and other Michigan facility staff are at very high risk for contracting the virus. Indeed, at a single jail in New York City, 167 inmates and 114 staff members already have tested positive for coronavirus. It is only a matter of time until Calhoun faces a similar crisis.
37. On March 29, Governor Whitmer issued Executive Order 202029, the purported aim of which is to protect vulnerable populations in jails from the spread of COVID-19. But the executive order falls far short of achieving that objective. For example, the order requires staff to implement safety measures when someone displays symptoms of the virus, but that cannot be effective against a virus where many of those who are infected may suffer from only mild symptoms or even be entirely asymptomatic while still carrying and spreading the disease.
38. Other jails around the country have tried similar mitigation efforts to no avail. The virus continues to infiltrate and spread through correctional facilities. The top doctor at Rikers Island in New York City has
15

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lamented how extensive mitigation efforts failed to slow the spread of the disease at the jail. He joins a chorus of public health experts in concluding that for such efforts to be effective, they must be paired with a reduction in the number of people incarcerated.
39. Recognizing the limits of any social distancing or hygiene-based mitigation strategy in a correctional facility, Governor Whitmer included in Executive Order 2020-29 a recommendation that individuals who are older or have underlying health conditions, among others, be considered for early release. Some county jails in Michigan have already begun to reduce their inmate populations. Macomb County Jail, for example, has reduced its inmate population from 875 to 648.
40. And, when correctional facilities have been unwilling to take appropriate action to address the heightened danger of COVID-19 infection, courts have not hesitated to intervene and protect the civil liberties of those most vulnerable to infection. Last week, for example, two New York judges ordered the release of ICE detainees who were at high risk of serious COVID19 infection because of an outbreak in their respective jails. Basank v. Decker, No. 20-cv-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Coronel v. Decker, No. 20-cv-2472, 2020 U.S. Dist. LEXIS 53954 (S.D.N.Y. Mar. 27, 2020). Similarly, on March 31, the District Court for the Middle District of
16

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Pennsylvania granted a Temporary Restraining Order releasing a group of individuals at high risk for serious infection from ICE detention. Thakker v. Doll, No. 20-cv-480 (M.D. Pa. Mar. 31, 2020). C. People Most Vulnerable to COVID-19 Should Be Released from ICE
Detention 41. Leading public health experts have recommended that Plaintiffs,
and other high-risk detainees, be released from Calhoun and similar correctional facilities.
42. Dr. Jonathan Louis Golob, an expert in infectious diseases and immunocompromised patients, has declared that social distancing and hygiene “are the only known effective measures for protecting vulnerable communities from COVID-19.” He has further advised that it is reasonable to expect that COVID-19 will “readily spread in detention centers such as prisons and jails[.]” Therefore, he has concluded, vulnerable people in such facilities “are at grave risk of severe illness and death from COVID-19.”
43. Plaintiffs in this case are people who are particularly vulnerable to serious illness or death if infected by COVID-19 and are currently detained at Calhoun as they await the resolution of their civil immigration cases.
44. Ruby Briselda Escobar is a citizen of El Salvador who has been in ICE custody since November 2018, approximately a year and a half. Ms. Escobar came to the United States when she was 24 years old in 2013.
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. 45. Ms. Escobar
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but a suitable doctor has not been provided.
46. Ms. Escobar is critically vulnerable to COVID-19 because of her
47. Amer Toma is an Iraqi national who first entered the United States about 10 years ago under Refugee status. Mr. Toma has been in ICE custody since September 21, 2019. Mr. Toma was arrested for driving with 5-45 kilograms of marijuana in his car, for which he received two years’ probation and no jail time. Since being brought into ICE custody, Mr. Toma has been detained at both Monroe County Jail and Calhoun.
48. Mr. Toma is 55 years old, wheelchair bound, and

disability for seven years.
19

He has been on SSI

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49. Mr. Toma is critically vulnerable to COVID-19 because of his
LEGAL BACKGROUND A. Plaintiffs Have a Constitutional Right to Reasonable Safety in
Custody 50. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As civil detainees, Plaintiffs’ detention is governed by the Fifth Amendment. Bell v. Wolfish, 441 U.S. 520, 539 (1979).3 Under the Fifth Amendment, civil detention may not “amount to punishment of the detainee.” Bell, 441 U.S. at 535.
3 Plaintiffs’ continued detention also violates the Eighth Amendment’s prohibition of cruel and unusual punishment—a much stricter standard than the Fifth Amendment’s ban on any punishment, which applies here. This is because Defendants have ignored “a condition of confinement that is sure or very likely to cause serious illness” by crowding Plaintiffs into living quarters with others who have “infectious maladies . . . even though the possible infection might not affect all of those exposed.” Helling, 509 U.S. at 32-33. See Bell, 441 U.S. at 539; Thakker, No. 1:20-cv-480, at *22 n.15 (ordering immediate release of immigration detainees due to COVID-19 under the Fifth Amendment and, citing Helling, finding that plaintiffs had also met the “more exacting Eighth Amendment standard”).
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51. Because of Plaintiffs’ underlying health conditions, which make them especially vulnerable to infection from COVID-19, the condition of their confinement is not “reasonably related to a legitimate governmental objective”; instead it is “arbitrary or purposeless[.]” See Bell, 441 U.S. at 539. See also J.H. v. Williamson Cty., Tennessee, 951 F.3d 709 (6th Cir. 2020) (applying Bell test to pre-trial detainee’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 572 (6th Cir. 1983) (same).
52. Plaintiffs’ detention is not “reasonably related” to its objective because it creates a serious risk of imminent illness and death. See Bell, 441 U.S. at 539. This risk is urgent, imminent, and unrelated to any legitimate governmental goal, as several federal courts have already held. See, e.g., Xochihua-Jaimes, No. 18-71460 at *1 (sua sponte ordering immediate release of immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”); Thakker v. Doll, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020) (ordering immediate release of immigrant petitioners because “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments”).
53. When the government fails to meet its obligation to provide adequate medical care, courts have a responsibility to remedy the resulting
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constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.”). The power to remedy constitutional violations arising from government confinement falls within the Court’s broad power to fashion equitable relief. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978).
54. To vindicate detainees’ due process rights in the face of the COVID-19 pandemic, federal and state courts across the country have ordered the release of detained individuals. See, e.g., Hernandez v. Wolf, No. 2060017-TJH (C.D. Cal. Apr. 1, 2020) (ordering release of detainee in California due to threat of COVID-19); Thakker v. Doll, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020) (same for 13 detainees in Pennsylvania); Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (ordering release of four medically vulnerable immigrant plaintiffs held in New York and New Jersey detention centers due to threat of COVID-19); Basank v. Decker, No. 20-cv-2518, 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020) (same, for ten immigrant plaintiffs who “suffer[] from chronic medical conditions, and face[] an imminent risk of death or serious injury in immigration detention if exposed to COVID-19”); Calderon Jimenez v. Wolf, No. 18-10225-MLW, Dkt. 507 (D. Mass. Mar. 26, 2020) (ordering grant of
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bail for an immigrant detainee held in Plymouth County, Massachusetts because “being in jail enhances risk”). On March 23, 2020, the Ninth Circuit ordered, sua sponte, the release of an immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers.” Xochihua-Jaimes, No. 18-71460, 2020 WL 1429877, at *1.
B. Petitioners Held in Post-Order Custody Must Be Released Because, as a Result of the COVID-19 Crisis Impact on International Travel and Removals, Their Removal Is Not Significantly Likely in the Reasonably Foreseeable Future 55. Ms. Escobar, who was ordered removed to El Salvador, has been
detained since November 2018, approximately a year and a half. Mr. Toma, who was ordered removed to Iraq, has been detained since September 2019, more than six months. As a result of the COVID-19 crisis, Ms. Escobar and Mr. Toma are not significantly likely to be removed in the reasonably foreseeable future, and therefore must be released pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001).
56. Both Ms. Escobar and Mr. Toma have final orders of removal, and are therefore detained under 8 U.S.C. § 1231, the statute governing postorder detention. 8 U.S.C. § 1231(a)(2) authorizes a 90-day period of mandatory post-final-order detention during which time ICE is supposed to effectuate removal, also known as “the removal period,” § 1231(a)(1)(A).
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57. Individuals whom the government is unable to remove during the 90-day removal period should be released under conditions of supervision. 8 U.S.C. § 1231(a)(3) (“If the alien . . . is not removed within the removal period, the alien, pending removal, shall be subject to supervision.”). These conditions include periodic reporting and other “reasonable written restrictions on the alien’s conduct.” Id.
58. Both Ms. Escobar and Mr. Toma have been detained far longer than the 90-day removal period.
59. In certain circumstances, the government “may” continue to detain certain individuals “beyond the removal period,” including when individuals have been ordered removed on criminal grounds or where the government deems them to be a risk to the community or unlikely to comply with a removal order. 8 U.S.C. § 1231(a)(6) (emphasis added).
60. ICE continued the detention of both Ms. Escobar and Mr. Toma beyond 90 days. Ms. Escobar has no criminal history. Mr. Toma has a conviction for delivery/manufacture of marijuana, for which he was sentenced to two years’ probation. There is no hearing process by which either Ms. Escobar or Mr. Toma could appeal the government’s unilateral determination that they should be detained past the 90-day removal period.
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61. In Zadvydas v. Davis, the Supreme Court held that 8 U.S.C. § 1231(a)(6) authorizes continued detention beyond the removal period only insofar as removal is “reasonably foreseeable.” 533 U.S. at 699. That is because, to satisfy due process, detention must “bear a reasonable relation to the purpose for which the individual [was] committed.” Id. at 690 (citations omitted). Because the principal purpose of the post-final-order detention statute is to effectuate removal, if removal cannot be effectuated, detention bears no reasonable relation to its purpose. Id. at 697. Thus, in order to avoid the serious constitutional problem that would be created if the statute authorized detention in such circumstances, the Court construed Section 1231(a)(6) as authorizing post-final-order detention only for a “period reasonably necessary to secure removal,” a period that the Court determined to be presumptively six months. Id. at 699-701. After this six-month period, if a detainee provides “good reason” to believe that his or her removal is not significantly likely in the reasonably foreseeable future, “the Government must respond with evidence sufficient to rebut that showing.” Id. at 701. If the government cannot do so, the individual must be released.
62. Petitioners Escobar and Toma have both been detained longer than six months. The COVID-19 crisis provides good reason to believe their removal is not significantly likely in the reasonably foreseeable future.
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Therefore, they must be released unless Defendants provide evidence that rebuts Petitioners’ showing that removal is unlikely in the reasonably foreseeable future.
63. Even under normal circumstances before the COVID-19 pandemic, securing the necessary documents for deportees and coordinating their travel could be a time-consuming, complicated, and costly process.
64. That process has now ground to a halt. The COVID-19 crisis has resulted in an unprecedented shutdown of international travel, a closure of international borders, the shuttering of embassy and consular services that are an integral part of removal processing, and a drastic curtailment of immigration case processing.
65. International travel has come to a virtual standstill. Sixty-four global airlines have completely suspended operations, and U.S. airlines have greatly reduced operations.4 Delta will cut its international flights by 80%.5 American Airlines plans to cut its international flights by 90% through April

4 Thomas Pallini, 64 Global Airlines Have Completely Stopped Flying

Scheduled Flights Due to Travel Bans, Airspace Closures, and Low

Demand for Travel – See the Full List, BUS. INSIDER (Apr. 1, 2020),

https://www.businessinsider.com/coronavirus-global-airlines-stopping-

flights-suspending-operations-2020-3.

5 Kelly Yamanouchi, Delta Says it Still Flies to All Points in its Domestic

Network, ATLANTA JOURNAL-CONSTITUTION

(Apr. 3, 2020),

https://www.ajc.com/blog/airport/delta-says-still-flies-all-airports-its-

domestic-network/Rym2MyGFFHdanXuKP7VPpK/.

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and May.6 It is unclear when regular commercial air travel will resume, and, even when it does, it will likely take a great deal of time before regular routes are reestablished to many countries, meaning that it is likely to remain extremely difficult to effectuate removals.
66. While ICE uses charter flights to effectuate removals to some countries, for many countries ICE relies on commercial airlines. Removals are not significantly likely in the reasonably foreseeable future to countries where ICE cannot currently operate charter flights and where there is no regular commercial air travel.
67. In addition, many countries have closed their borders as a result of COVID-19. Both commercial and charter flights are affected. It is unclear how long it will be until countries reopen their borders, or, when they do, whether countries will agree to accept people deported from the United States, particularly those coming from Michigan, one of the areas in the United States hardest hit by COVID-19. It is also unclear what requirements countries will impose in order to accept individuals coming from abroad. For example, even if a country opens up its borders and allows entry conditioned on a period of

6 Keith Griffin, American Airlines Cuts International Flights by 90%

Through May – but Vows NOT to Halt Domestic Service During the

Coronavirus Crisis, DAILY MAIL

(Apr. 3, 2020),

https://www.dailymail.co.uk/news/article-8186105/American-Airlines-

cuts-international-flights-90-May.html.

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quarantine, it is unclear that deportees, who are unlikely to have the resources to isolate in a hotel for several weeks, will be admitted.
68. The shuttering of consular and embassy services makes removals more difficult still. Even absent the COVID-19 crisis, individuals set to be deported must obtain travel documents, usually a passport. It was already quite difficult for ICE to obtain passports or other travel documents for nationals of certain countries. Given the global scale of the COVID-19 crisis, foreign governments are fully occupied with protecting their countries from the pandemic. As in the United States, government employees in other countries responsible for processing passport and document requests are likely to be working from home, assuming that they have internet and computers, which will often not be the case. Similarly, foreign consular and embassy staff in the United States face challenging working conditions, if they are working at all. As a result, it is unlikely that ICE will be able any time soon to obtain passports or travel documents for petitioners who do not already have them.
69. The slowing and shutdown of consular and embassy services will also affect removals to countries where transit visas through third countries are necessary in order to remove a person because there are no direct flights to the country of deportation. Because many deportees are escorted by ICE
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officers on such flights, in order to travel through the transit country or countries, ICE needs to procure transit visas not just for the deportee, but also for the ICE escorts.
70. Likewise, immigration case processing in the United States has been severely curtailed as a result of the pandemic. As of 2020, there were over 1.1 million cases pending in the immigration court system, and the average wait for a disposition in Michigan is almost two years.7 While the Detroit Immigration Court remains open for detainee hearings, detainees are being encouraged to waive their right to in-person appearances in favor of telephonic appearances, and to work with the Department of Justice to take certain facts out of controversy.8 Thus, those detainees who wish to press their right to fair procedures will see their cases delayed in a system that is heavily backlogged under the best of circumstances.
7 See Immigration Court Backlog Tool, TRAC REPORTS, INC., https://trac.syr.edu/phptools/immigration/court_backlog/.
8 MARK JEBSON, U.S. IMMIGRATION JUDGE, STANDING ORDER: TELEPHONIC APPEARANCE DUE TO COVID-19 IN DETAINED CASES BEFORE JUDGE MARK JEBSON IN THE DETROIT IMMIGRATION COURT (MAR. 26, 2020). Regarding the right to an in-person hearing generally, IMMIGRATION COURT PRACTICE MANUAL, DEPARTMENT OF JUSTICE, CHAPTER 4 (2008) (“[E]videntiary hearings on the merits may only be conducted by telephone conference if the respondent consents after being notified of the right to proceed in person or through video conference.”).
29

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71. As the pandemic continues to spread, it is unclear how long it will take for immigration courts or the Board of Immigration Appeals to hear cases from individuals who are seeking further immigration relief or who are detained due to a government appeal.
72. Defendants seek to deport Petitioner Ruby Escobar to El Salvador. El Salvador has banned entry to all foreigners, excluding accredited diplomats and legal residents, and those allowed to enter are subject to a 30day quarantine.9 El Salvador also shut down its airport on March 16, 2020 to all commercial flights, and it is unclear when the airport will reopen.
73. Ms. Escobar’s immigration attorney is not certain whether Ms. Escobar has a passport or other immigration documents that would permit her entry into El Salvador, or whether those still must be obtained, which would be very difficult under present circumstances.
74. Given these facts, Ms. Escobar has provided good reason to believe that her removal is not significantly likely in the reasonably foreseeable future. She must therefore be released unless Defendants can rebut that showing.

9 See Coronavirus: Travel Restrictions, border shutdowns by country, AL

JAZEERA

(Apr.

4,

2020),

https://www.aljazeera.com/news/2020/03/coronavirus-travel-restrictions-

border-shutdowns-country-200318091505922.html; U.S. Embassy in El

Salvador, Current Information for U.S. Citizens in El Salvador.

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75. Defendants seek to deport Petitioner Amer Toma to Iraq. On February 25, 2020, Mr. Toma won his immigration case, and was granted Withholding of Removal under the Convention Against Torture from the Detroit Immigration Court. However, the government appealed, and is keeping Mr. Toma in immigration detention while it appeals. It is unclear how long it will take for the government’s appeal to be decided given the impact of the COVID-19 crisis on the operations of the Board of Immigration Appeals.
76. Even before the COVID-19 crisis, this Court found, based on extensive evidence obtained in class action litigation about the difficulty of repatriating nationals of Iraq, that there is no significant likelihood that Iraqi nationals will be removed to Iraq in the reasonably foreseeable future. See Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020). Although Mr. Toma is not a class member in Hamama due to the date of his removal order, the Hamama court’s factual findings about the obstacles to removals to Iraq are directly relevant here.
77. Because of the COVID-19 crisis, the obstacles to Mr. Toma’s removal are even greater than at the time of the Hamama decision. Iraq will not accept repatriations or issue travel documents without first conducting an
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in-person consular interview. Mr. Toma has not had a consular interview. Given the COVID-19 crisis, it is unclear whether or when Iraqi consular officials will conduct any further consular interviews.
78. Iraq has suspended all flights to and from Iraq, and has also banned travel between Iraqi provinces.10 The World Health Organization reports that, as of April 1, 2020 there were 697 total cases of COVID-19 in Iraq, and that it expects the reported numbers to “spike in the coming two weeks.”11
79. Given these facts, Mr. Toma has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future. He must therefore be released unless Respondents can rebut the showing.
C. ICE Has the Authority to Release Detained People in Its Custody 80. It is well within ICE’s authority to comply with constitutional
requirements by releasing people who are vulnerable to severe illness or death if they contract COVID-19. For example, the regulations governing ICE’s release authority state that serious medical conditions are a reason to parole
10 COVID-19 Information, U.S. EMBASSY & CONSULATES IN IRAQ (Apr. 1, 2020), https://iq.usembassy.gov/covid-19-information/.
11 The Fight to Contain COVID-19 in Iraq, WORLD HEALTH ORGANIZATION, http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid-19-iniraq.html.
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an individual, as “continued detention would not be appropriate” in such cases. 8 C.F.R. § 212.5(b)(1).
81. ICE not only has the authority to exercise its discretion to release individuals from custody, but has routinely done so for especially vulnerable detainees like Plaintiffs.
82. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating against detention.
83. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention.
D. This Court Has the Authority to Order Plaintiffs’ Release 84. While the circumstances of this case are certainly unusual, the
Court’s authority to order Plaintiffs’ release to ensure their constitutional rights are protected is well established. District courts have “ample authority” to address “each element” contributing to a constitutional violation. Hutto v. Finney, 437 U.S. 678, 687 (1978).
85. Courts regularly have exercised this authority to remedy constitutional violations caused by overcrowding. See Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984)
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(concluding that court did not exceed its authority in directing release of lowbond pre-trial detainees as necessary to reach a population cap).
86. Where the government fails to meet its obligations to provide for adequate medical care, courts have a responsibility to remedy the resulting constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Id.
87. These constitutional principles make clear, consistent with the opinions of leading public health experts, that releasing Plaintiffs is the only viable remedy to ensure their safety from the threat to their health that COVID-19 poses. Plaintiffs are older adults and people with underlying medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19.
88. In the face of this great threat, social distancing and hygiene measures are Plaintiffs’ only defense against COVID-19. Those protective measures are impossible at Calhoun, where Plaintiffs share sleeping quarters, toilets, sinks and showers, eat and recreate in communal spaces, and are necessarily in close contact with the many other detainees and officers around them. Because these conditions pose a heightened risk of infectious spread, Plaintiffs face unreasonable harm from continued detention.
34

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CLAIMS FOR RELIEF COUNT ONE
Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement) 89. Plaintiffs repeat and reallege each and every allegation above, as
if set forth in full herein. 90. The Fifth Amendment of the Constitution guarantees that civil
detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment or does not ensure those detainees’ safety and health.
91. The conditions of confinement imposed by Defendants subject Plaintiffs to heightened risk of contracting COVID-19, for which there is no vaccine, known treatment, or cure. Because of Plaintiffs’ particular vulnerabilities, they risk serious illness and death if infected with COVID-19. Defendants are subjecting Plaintiffs to a substantial risk of serious harm, in violation of Plaintiffs’ rights under the Due Process Clause.
92. Leading public health experts agree that Plaintiffs “are at grave risk of severe illness and death” if they remain at jails like Calhoun.
35

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Accordingly, Defendants are subjecting Plaintiffs to detention conditions that amount to punishment and that fail to ensure their safety and health.
93. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Due Process Clause.
COUNT TWO Defendants’ Detention of Plaintiffs Where Removal Is Not
Significantly Likely in the Foreseeable Future Violates 8 U.S.C. § 1231(a)(6)
94. Petitioners reallege the foregoing paragraphs as if set forth fully herein.
95. Due process requires that immigration detention bear a reasonable relation to its purpose. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Rosales-Garcia v. Holland, 322 F.3d 386, 411 (6th Cir. 2003). The principal purpose of the statute that authorizes post-final-order detention, 8 U.S.C. § 1231, is to effectuate removal. Where removal cannot be effectuated, detention is not reasonably related to its purpose, would violate due process, and is not statutorily authorized.
96. Petitioners Escobar and Toma have met their burden of establishing good reason to believe that their removal is not reasonably likely in the foreseeable future. Defendants have not rebutted this showing, as they have provided no evidence that either Ms. Escobar’s or Mr. Toma’s removal is reasonably foreseeable. Absent such evidence, Petitioners’ detention is not
36

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authorized by statute and they are entitled to immediate release under orders of supervision.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: a. Issue a Writ of Habeas Corpus and order Plaintiffs’ immediate
release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause; b. In the alternative, issue injunctive relief ordering Defendants to immediately release Plaintiffs, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause; c. Issue a declaration that Defendants’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including older individuals and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause; d. Declare that for persons held in post-order detention under 8 U.S.C. § 1231, including Plaintiffs Escobar and Toma, there is
37

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good reason to believe that, due to the COVID-19 crisis, there is no significant likelihood of their removal in the reasonably foreseeable future, and that such persons, including Plaintiffs Escobar and Toma, must be released unless the government can rebut that showing; e. Find that Defendants have failed to rebut the showing of Plaintiffs Escobar and Toma that their removal is not significantly likely in the reasonably foreseeable future; order the government immediately to release Plaintiffs Escobar and Toma from detention under orders of supervision; and enjoin Defendants from redetaining Plaintiffs unless or until Defendants can establish that their removal is significantly likely in the reasonably foreseeable future; f. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and e. Grant any other and further relief that this Court may deem fit and proper.
38

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Dated: April 5, 2020
Respectfully submitted,
/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice Cho* American Civil Liberties Union
Foundation, National Prison Project 915 15th Street N.W., 7th Floor Washington, DC 20005 (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan* Michael K.T. Tan* Omar C. Jadwat* ACLU Foundation Immigrants’
Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660
abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo* ACLU Foundation Immigrants’
Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 mngo@aclu.org

39

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
/s/ Jeannie S. Rhee Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill* Peter E. Jaffe 2001 K Street NW, Washington, DC 20006-1047 Telephone: (202)223-7300 Facsimile: (202)223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com pjaffe@paulweiss.com rfiorill@paulweiss.com Jonathan M. Silberstein-Loeb* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212)373-3000 Facsimile: (212)757-3990 jsilberstein-loeb@paulweiss.com Attorneys for Plaintiff-Intervenors * Application for admission forthcoming
40

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CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on April 5, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted, ___/s/ Jeannie S. Rhee_______
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,
Plaintiff,
- against -
REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; HEIDI E. WASHINGTON, in her capacity of Director of Michigan Department of Corrections Calhoun Correctional Center,

No. 2:20-cv-10829-JEL-APP

Defendants,

And

Ruby Briselda Escobar; Amer Toma, Plaintiff-Intervenors.

DECLARATION OF RONALD KAPLOVITZ, ESQ. IN FURTHER SUPPORT OF PLANINTFF-INTERVENORS RUBY BRISELDA ESCOBAR AND AMER TOMA’S MOTION FOR TEMPORARY
RESTRAINING ORDER

1

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Case 5:20-cv-10829-JEL-APP ECF No. 73 filed 05/15/20 PageID.2020 Page 3 of 3

DocuSign Envelope ID: 2CC5E679-D3AF-4E51-AF8A-15D3CF8F9725
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,
Plaintiff,
- against -
REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; HEIDI E. WASHINGTON, in her capacity of Director of Michigan Department of Corrections Calhoun Correctional Center,

No. 2:20-cv-10829-JEL-APP

Defendants,

And

Ruby Briselda Escobar; Amer Toma, Plaintiff-Intervenors.

DECLARATION OF FARAH HOBBALLAH, ESQ. IN FURTHER SUPPORT OF PLANINTFF-INTERVENORS RUBY BRISELDA ESCOBAR AND AMER TOMA’S MOTION FOR TEMPORARY
RESTRAINING ORDER

1

DocuSign Envelope ID: 2CC5E679-D3AF-4E51-AF8A-15D3CF8F9725
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I, Farah Hobballah, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Farah Hobballah. I make these statements based upon my personal knowledge after having had conversations with my client.
2. I am an attorney in private practice in Dearborn, Michigan. In this capacity, I have represented Ruby Briselda Escobar in her immigration proceedings since approximately December 2019.
3. Ms. Escobar has been in civil immigration detention at Calhoun County Correction Center since November 2018. She has not been detained at any other location.
4. As part of my duties as Ms. Escobar’s attorney, I conduct visits with her at Calhoun County Correctional Center and speak with her by telephone.
5. Since I began representing Ms. Escobar, I have visited Calhoun County Jail three times. Prior to the past two weeks, I have been able to speak with Ms. Escobar three times per week.
6. However, for the past two weeks, it has been extremely difficult to get in touch with my client. Calhoun County Correctional Center does not take incoming calls to detainees, and only takes messages that they promise to deliver to the detainees. Once given my message, detention staff are then supposed to have Ms. Escobar call me. At this time, Ms. Escobar has been unable to call me back for many hours, or sometimes days. I have even resorted to emailing the deputy in charge in order to get my client the message to call me back, which is an atypical procedure. My colleagues with clients in Calhoun County have complained for the last two weeks about similar issues.
7. In my visits and conversations with Ms. Escobar, and through my review of her immigration records and documents, I have learned the following about her: a. Ms. Escobar was born in El Salvador, and came to the United States in 2013 when she was twenty-four years old. b. Ms. Escobar
c.
2

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d.
e.
f. Ms. Escobar
g.
h. Before being detained, Ms. Escobar
i. Ms. Escobar has seen a doctor about her medical conditions once or twice at the start of her time in immigration detention, but she has been seen by a nurse for every subsequent appointment. Her most recent physical exam took place several weeks ago. Ms. Escobar’s last two physical exams were completed by a nurse. The nurse told Ms. Escobar which Ms. Escobar must buy herself from the commissary. Ms. Escobar does not know if the doctor she was seeing before has been told about her ongoing symptoms since she began seeing the nurse exclusively.
j. Based on my experience and observations as her attorney, and based on descriptions of Ms. Escobar’s harrowing life experiences, I believe Ms. Escobar suffers from Post-Traumatic Stress Disorder (“PTSD”). This condition aggravates her existing vulnerability and anxiety about her health and safety in detention.
k. Because of her medical conditions, Ms. Escobar is very worried about her risk of being infected with COVID-19 at Calhoun County Correctional Center. She does not believe the detention center is doing enough to keep her safe.
3

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8. Throughout the course of my representation of Ms. Escobar, I have also learned the following about conditions in Calhoun County Jail:
a. Ms. Escobar lives in a cell with five other female detainees, who frequently alternate between incoming and outgoing detainees. Their beds are set up as bunk beds, and there is very little space to move around inside the cell.
b. Currently, the detention center does not allow detainees to leave their cells for any reason. They are on lockdown. This has been happening for almost two weeks. Meal trays are delivered directly to detainees’ cells by staff and detainee volunteers. Ms. Escobar does not believe the facility is being sanitary in preparing and delivering detainee meals because other detainees claim that the preparers of the food are visibly sick.
c. Even though detainees are no longer gathering in larger groups, Ms. Escobar’s cell itself is small and crowded. She is not able to keep the recommended distance of six feet between herself and others inside the cell.
d. Ms. Escobar has complained to me that “everyone around” her is sick, coughing, and weak, and they are not being treated for their symptoms.
e. Ms. Escobar was not given any information about COVID-19 from the staff at the detention center. My office was the first to inform her about the virus.
9. Ms. Escobar has a final order of removal that was issued in 2013, when she first attempted entry into the United States. At that time, Ms. Escobar was immediately apprehended at the border by Customs and Border Patrol (“CBP”). Upon her apprehension by Immigration and Customs Enforcement (“ICE”) in November 2018, Ms. Escobar indicated that she feared being removed to El Salvador. Thus, she was given a Reasonable Fear Interview. Ms. Escobar was found credible, but the ICE officer did not find that she merited any form of relief. Ms. Escobar was
Although both ICE and the Immigration Judge deemed Ms. Escobar’s testimony credible, the Immigration Judge denied Ms. Escobar’s application
10. When I met Ms. Escobar, she had never been screened for any other form of relief besides Withholding of Removal. Upon screening her,
Her application is currently pending before the United States Citizenship and Immigration Services (“USCIS”), and she has completed a biometrics retrieval.
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11. Finally, over the course of my representation, Ms. Escobar has divulged highly sensitive, personal information to me about her past traumatic experiences being trafficked and her sexual orientation. Ms. Escobar was unable to reveal this vital information to past attorneys, due to her ongoing trauma. I believe this information would have been outcome-determinative in her prior removal proceedings. I intend to file a Motion to Reopen Removal Proceedings, in order that Ms. Escobar’s applications may be freshly heard and fully considered by an Immigration Judge.
12. Ms. Escobar has never committed a crime in the United States, or in El Salvador. She has three children who are now in foster care because Ms. Escobar is in civil immigration detention; they are between the ages of nine and fifteen years old. Her children have applied for asylum, and Ms. Escobar would like to be reunited with them and help keep them safe from COVID-19.
13. If she is released, Ms. Escobar can live with her best friend, Katherine DeLeon. At Ms. DeLeon’s home in Lincoln Park, Michigan, Ms. Escobar will be able to get medical treatment for her conditions while maintain a safe distance from others and quarantining as necessary.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 5th day of April 2020, in Dearborn, Michigan.
4/5/2020 | 9:52 AM EDT
_____________________________ Farah Hobballah, Esq. 16030 Michigan Avenue, Suite 100 Dearborn, MI 48126
5

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,
Petitioner,
and
RUBY BRISELDA ESCOBAR and AMER TOMA,
Plaintiff-Intervenors,
- against -
REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; HEIDI E. WASHINGTON, in her capacity of Director of Michigan Department of Corrections Calhoun Correctional Center,
Respondents.

No. 2:20-cv-10829-JEL-APP

PLAINTIFF-INTERVENORS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.600217 PPaaggee22ooff2233
TABLE OF CONTENTS I. Respondents’ Artificial Conception of “High Risk” Has No Basis
in Fact. .....................................................................................................................3 A. There is No Exhaustive List of “High Risk” Factors. .................................4 B. Mr. Toma Is at “High Risk.” .......................................................................5 II. Continued Detention of A High-Risk Individual Like Mr. Toma Violates Due Process. ..............................................................................................7 A. Mr. Toma is Substantially Likely to Experience Irreparable
Harm in the Form of Loss of Health or Life................................................7 B. Mr. Toma is Substantially Likely to Experience Irreparable
Harm in the Form of an Invasion of His Constitutional Rights. ..........................................................................................................8 C. The Four Factors for Granting a Temporary Restraining Order Weigh in Mr. Toma’s Favor..............................................................9 III. Mr. Toma’s Detention is Not Reasonably Related To the Civil Purpose of Removal...............................................................................................10 A. Detention is Impermissible Punishment When It is Not Reasonably Related to Its Purpose. ...........................................................10 B. Mr. Toma’s Detention During the COVID-19 Crisis is Particularly Unreasonable..........................................................................13
i

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TABLE OF AUTHORITIES

CASES

Page(s)

Ali v. Dep’t of Homeland Security, No. 4:20-cv-00140, 2020 WL 1666074 (S.D. Tex. Apr. 2, 2020) ..............................15

Bell v. Wolfish, 441 U.S. 520 (1979).....................................................................................................10

City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750 (E.D. Mich. 2008) ......................................................................10

Farmer v. Brennan, 511 U.S. 825 (1994) ....................................................................................................10

Foucha v. Louisianna, 504 U.S. 71 (1992).......................................................................................................12

Griffith v. Franklin County, Kentucky, 2019 WL 1387691 (E.D. Kent. 2019) .........................................................................11

Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020) ..............................................................................................14

Howell v. Hodge, 710 F.3d 381 (6th Cir. 2013) .......................................................................................12

J.H. v. Williamson Cty., Tenn., 951 F.3d 709 (6th Cir. 2020) ...........................................................................10, 11, 13

Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466 (2015)........................................................................11

Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) .......................................................................................13

Martin v. Warren Cty., Kentucky, __ F. App’x __, 2020 WL 360436 (6th Cir. Jan. 22, 2020), reh’g denied (Feb. 4, 2020) .........................................................................................11

Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) .......................................................................................11

Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) .......................................................................................12

ii

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United States v. Salerno, 481 U.S. 739 (1987).....................................................................................................12
Thakker v. Doll, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020) .................................................................15
Zadvydas v. Davis, 533 U.S. 678 (2001)...............................................................................................12, 13
OTHER AUTHORITIES The Fight to Contain COVID-19 in Iraq, WHO (Apr. 1, 2020),
http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid-19in-iraq.html ..................................................................................................................15 Groups at Higher Risk for Severe Illness, CDC (Apr. 2, 2020) (emphasis original), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html .....................................................................4, 6 People with Disabilities, CDC (Mar. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-disabilities.html ...................................................................... 7 Q&A on Coronavirus (COVID-19), WHO (Mar. 9, 2020), https://www.who.int/news-room/q-a-detail/q-a-coronaviruses .....................................5 Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)—United States, February 12-March 16, 2020, CDC (Mar. 26. 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm .......................................5 U.S. Embassy & Consulates in Iraq, COVID-19 Information (last updated Apr. 1, 2020), https://iq.usembassy.gov/covid-19-information/..................................14 U.S. Immigration Officials Evaluate Vulnerable Detainees for Possible Release Amid Pandemic, N.Y. Times (Apr. 7, 2020)..................................................15
iii

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.600340 PPaaggee55ooff2233
PRELIMINARY STATEMENT Respondents rest their entire Opposition to Plaintiff-Intervenors’ Motion for a Temporary Restraining Order on the proposition that Amer Toma will not suffer irreparable harm if he remains in detention at Calhoun County Correctional Center because he does not “qualify” as being at “high-risk” from COVID-19.1 That assertion is premised on a fundamental misapprehension of the facts. Indeed, at base, it belies a failure to comprehend the facts of Mr. Toma’s situation and reality of the global health crisis that the coronavirus pandemic presents. It is also contrary to the law, which requires the Court to balance each of the four legal requirements necessary to obtain a temporary restraining order, recognizing that no one factor is dispositive. Instead, Respondents unduly narrow the Court’s April 6, 2020 Amended Order and fail to give full effect to the Court’s reasoned legal analysis. According to Respondents, unless one is over 65 years old or has certain specific medical conditions enumerated by the Centers for Disease Control and Prevention (CDC), one cannot suffer irreparable harm from exposure to COVID-19 in a congregate institutional detention facility. This perverse result arises from two false premises: First, Respondents urge an unduly constrained definition of “high risk” and then proceed to mount their entire argument on this narrowed construct.
1 Plaintiff-Intervenor Ruby Briselda Escobar was released from ICE detention on April 6, 2020.
1

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They do this notwithstanding express statements to the contrary from the CDC, Respondents’ own medical experts, and countless other public health organizations and officials, that our current understanding of the novel coronavirus is limited, that the age range at which people are believed to be at greater risk is wide, and that the CDC’s list of medical conditions is non-exhaustive. As explained below, under the necessarily broad conception of “high risk” that the CDC has publicized, it is plain that Mr. Toma falls within that category of individuals.
Second, as this Court stated clearly in its April 6th Order, there are two bases for a finding of irreparable harm—first, on the grounds of loss of health or life, and second, in the form of an invasion of constitutional rights—and neither requires a medical finding of “high risk.” The Court instead explained that irreparable harm in the form of loss of health or life arises, unsurprisingly, from the cognizable and wellestablished legal concept of a “substantial risk” that the irreparable harm will occur. Mr. Toma has clearly demonstrated that, in light of his myriad health issues and his mature age, he is at a substantial risk of irreparable harm. Further, and in any event, Mr. Toma’s Fifth Amendment claims support a finding that he will suffer irreparable harm absent an injunction.
In addition, Mr. Toma’s continued detention amounts to impermissible punishment because it is not reasonably related to the civil purpose of removal and it is excessive in relation to that purpose. As this Court held in Ms. Malam’s case,
2

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immigrant detainees, like pretrial detainees, cannot be punished; rather, continued detention must be reasonably related to a legitimate governmental purpose. Mr. Toma’s continued detention during the COVID-19 pandemic is particularly unreasonable—and hence impermissibly punitive—given his medical vulnerability, the fact that he has already won his immigration case, and the fact that he cannot be removed to Iraq anytime in the foreseeable future.
For these reasons, and as explained further below, the Court should grant Mr. Toma’s motion for a temporary restraining order.
ARGUMENT I. Respondents’ Artificial Conception of “High Risk” Has No Basis in
Fact. Respondents advance an artificial and narrow concept of “high risk,” which has no basis in fact or science, argue that Mr. Toma does not come within it, and conclude that he therefore cannot suffer irreparable harm. But every reliable source of information, including the CDC and the World Health Organization (WHO), emphasizes that current knowledge about the coronavirus is limited, the risk of serious illness depends on a host of factors, and what constitutes “high risk” is expansive and subject to change. As explained below, Mr. Toma clearly qualifies as an individual at greater risk of serious health consequences should he become infected.
3

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A. There is No Exhaustive List of “High Risk” Factors. Notwithstanding Respondents’ assertions to the contrary, there is no such
thing as a fixed definition of “high risk” on which the Court could possibly predicate a determination of irreparable harm. According to the CDC’s website, “COVID-19 is a new disease and there is limited information regarding risk factors for severe disease.”2 Thus, “[b]ased on currently available information and clinical expertise,” which is clearly subject to change, “older adults, and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.”3
The information available to infectious disease experts and public health organizations is preliminary and non-exhaustive and their definitions of “high risk” reflect the fact that knowledge about COVID-19 is limited and evolving. “Based on what we know now,” observes the CDC, “those at high-risk of severe illness from COVID-19 are . . . [p]eople of all ages with underlying medical conditions, particularly if not well controlled.” The CDC then provides a non-exhaustive list of conditions.4 Likewise, the WHO, which is “still learning about how COVID-2019
2 Groups at Higher Risk for Severe Illness, CDC (Apr. 2, 2020) (emphasis original), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html.
3 Id. 4 Id.
4

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affects people,”5 has only been able to conclude that “older persons and persons with pre-existing medical conditions (such as high blood pressure, heart disease, lung disease, cancer or diabetes) appear to develop serious illness more often than others.”6 See also Decl. of Dr. Jonathan Louis Golob, ECF No. 20-2 at ¶ 3.
B. Mr. Toma Is at “High Risk.” Using the CDC’s non-exhaustive approach, Mr. Toma “qualifies” as being at
“high risk” of severe illness from COVID-19 because he is an “older adult” with “serious underlying medical conditions.” As this Court observed in its April 6th Order, quoting the CDC, “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled.” ECF No. 23 at 26.
Mr. Toma is 55 years old. He is an “older adult.”7 He is therefore at risk of severe illness from COVID-19. Indeed, according to a report published by the CDC, 36 percent of COVID-19 patients admitted to intensive care units were between the ages of 45 and 64.8 The CDC’s report emphasizes that “[t]he risk for serious disease
5 Q&A on Coronavirus (COVID-19), WHO (Mar. 9, 2020), https://www.who.int/news-room/q-a-detail/q-a-coronaviruses.
6 Id. 7 Ms. Malam, who this Court ordered released, is 56 years old. See ECF 23 at 25. 8 Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-
19)—United States, February 12-March 16, 2020, CDC (Mar. 26. 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm.
5

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.600395 PPaaggee1100ooff2233
and death in COVID-19 cases among persons in the United States increases with age.”9 As Plaintiff-Intervenors’ expert Professor Dr. Jonathan Golub, a specialist in infectious diseases at the University of Michigan School of Medicine, has stated under penalty of perjury, “COVID-19 makes certain populations of people severely ill. People over the age of fifty are at high risk.” ECF No. 20-2 at ¶ 3 (emphasis added); see also ECF No. 20-3 at ¶ 5. Moreover, “people over the age of 50” who are living in “an immigration detention center, with limited access to adequate hygiene facilities, limited ability to physically distance themselves from others, and exposure to potentially infected individuals . . . are at grave risk of severe illness and death from COVID-19.” ECF No. 20-2 at ¶ 14.
On top of his age, Mr. Toma has serious underlying medical conditions: as the government concedes (see ECF No. 26-2 at ¶ 8), he uses a wheelchair due to a back injury, which is the result of three bullets that remain lodged in his body from the Iran-Iraq War, he suffers from hypotension and prostate issues, and may well have cancer. See ECF No. 20 at 3–4. In addition to those with serious underlying medical issues, the CDC also recognizes that “people with disabilities might be at a higher
9 Groups at Higher Risk for Severe Illness, CDC (Apr. 2, 2020) (emphasis in original), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html.
6

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.601306 PPaaggee1111ooff2233
risk of infection or severe illness.”10 Thus, people “who have limited mobility or who cannot avoid coming into close contact with others who may be infected,” “might be at increased risk of becoming infected.”11 This applies to Mr. Toma in particular because, as a result of his mobility issues, he has even less ability than other detained people, to engage in social distancing in the confined quarters at Calhoun, which makes him especially susceptible to and at grave risk from COVID19. II. Continued Detention of A High-Risk Individual Like Mr. Toma Violates
Due Process. Whether or not Mr. Toma comes within the bounds of Respondents’ artificially narrow conception of “high risk” is also beside the point because Mr. Toma meets the legal requirements needed to obtain a temporary restraining order. A. Mr. Toma is Substantially Likely to Experience Irreparable Harm in the Form of Loss of Health or Life. As the Court explained in its April 6th Order, it is not simply a particular plaintiff’s personal characteristics that make irreparable harm substantially likely, but the factual circumstances in general. “In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through
10 People with Disabilities, CDC (Mar. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peoplewith-disabilities.html.
11 Id.
7

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asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions.” ECF No. 23 at 29 (citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)). Respondents do not contest, and there can be no doubt, that Mr. Toma’s continued confinement, like that of Ms. Malam, exposes him “to substantial risk of contracting COVID-19.” This substantial risk of contracting COVID-19 combined with the fact that Mr. Toma is over 50 years old and has serious underlying medical conditions puts him at substantial risk of irreparable harm.
B. Mr. Toma is Substantially Likely to Experience Irreparable Harm in the Form of an Invasion of His Constitutional Rights. Respondents virtually ignore the fact that Mr. Toma is substantially likely to
experience irreparable harm in the form of an invasion of his constitutional rights. As the Court explained in its April 6th Order, the “alleged violation of a constitutional right is sufficient for a court to find irreparable harm.” ECF No. 23 at 31–32 (emphasis added). Far from taking issue with whether Mr. Toma is likely to succeed on the merits of his habeas petition, as he explained at length in his opening brief (see ECF No. 20 at 11–21), Respondents merely argue that “[a]bsent a showing that he is at high-risk for serious harm from COVID-19, [Mr.] Toma cannot establish a constitutional violation entitling him to habeas relief.” ECF No. 26 at 5. But, as the Court noted in its April 6th Order, a specific “high risk” is not what the law requires; rather, a “generalized risk is a substantial risk.” ECF No. 23 at 34.
8

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Respondents are making a variation of the same unsuccessful argument they made regarding Ms. Malam’s motion. In Ms. Malam’s case they argued that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is ‘imminent’.” Id. at 35. Now they argue that Mr. Toma has not established that he is at sufficiently “high-risk” to suffer irreparable harm. The failing is the same: “Respondents grievously underestimate the seriousness of the risk to Petitioner.” Id. at 35. Because of that risk, and because of the fact that Mr. Toma is an “older adult” with “serious underlying medical conditions,” he is “not ensured anything close to ‘reasonable safety’” while detained at Calhoun. Id. at 38. As the Court concluded in its April 6th Order, based on the record before the Court, “the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.” Id. at 38.
C. The Four Factors for Granting a Temporary Restraining Order Weigh in Mr. Toma’s Favor. The substantial likelihood of irreparable harm is only one factor that this Court
must consider when deciding whether to grant his motion. There are four legal requirements for a temporary restraining order, but they “are not prerequisites that must be met,” they are “interrelated considerations that must be balanced together.” ECF No. 23 at 20–21. That is, the Court must balance each of the four factors, and
9

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“no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008).
As explained above, Mr. Toma has adequately shown a substantial likelihood of irreparable harm. The remaining factors also counsel granting Mr. Toma relief. He has also clearly demonstrated a likelihood of success on the merits, and he has shown that the public interest and the balance of equities weigh heavily in his favor. As the Court has explained, the “public interest and balance of equities demand that the Court protect Petitioner’s constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional.” ECF No. 23 at 44. III. Mr. Toma’s Detention is Not Reasonably Related To the Civil Purpose
of Removal. A. Detention is Impermissible Punishment When It is Not Reasonably Related
to Its Purpose. This Court held in Ms. Malam’s case that immigrant detainees, like pretrial detainees, cannot be punished, and that therefore any continued detention must be “‘reasonably relate[d] to a legitimate government purpose.’”12 ECF No. 23 at 39
12 The Court’s opinion in Malam, issued in the press of emergency filings, discussed two different legal standards: the requirement that civil detainees “may not be punished,” Bell, 441 U.S. at 535, and the Eighth Amendment “deliberate indifference” standard under Farmer v. Brennan, 511 U.S. 825, 835 (1994). ECF No. 23 at 33. The Sixth Circuit recently reaffirmed that for pretrial detainees, the Bell standard is the applicable one. See J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020). As this Court noted, the Sixth Circuit had previously
10

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(quoting Bell v. Wolfish, 441 U.S. 520, 536–39 (1979)). See also Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2475 (2015) (finding a pretrial detainee can prevail by
showing that “the challenged governmental action is not rationally related to a
legitimate governmental objective or that it is excessive in relation to that purpose”).
applied the deliberate indifference standard to pretrial detainees under the Fifth Amendment. ECF No. 23 at 33 (citing Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)). However, the Supreme Court has since clarified that different standards apply to the Eighth Amendment claims of convicted prisoners and the Fifth Amendment claims of pretrial detainees. In Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473 (2015), the Court held that a pretrial detainee’s Fourteenth Amendment excessive force claim need only meet the objective component of a deliberate indifference claim by showing that “the force purposely or knowingly used against him was objectively unreasonable.” Id. In holding that a different standard applied to pretrial detainees, the Court emphasized that “pretrial detainees (unlike convicted prisoners) cannot be punished at all.” Id. at 2473. The Sixth Circuit subsequently recognized that “this shift in Fourteenth Amendment deliberate indifference jurisprudence calls into serious doubt whether [a plaintiff] need even show that the individual defendant-officials were subjectively aware of [the plaintiff’s] serious medical conditions and nonetheless wantonly disregarded them.” Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018). See also Martin v. Warren Cty., Kentucky, __ F. App’x __, __ n. 4, 2020 WL 360436, at *4 n.4 (6th Cir. Jan. 22, 2020), reh’g denied (Feb. 4, 2020); Griffith v. Franklin County, Kentucky, 2019 WL 1387691, at * 5 (E.D. Kent. 2019) (holding that after Kingsley, a pretrial detainee need not show subjective deliberate indifference). While Mr. Toma would meet the deliberate indifference test for the same reasons that this Court found Ms. Malam met that test, ECF No. 23 at 33-41, Plaintiff believes that the proper test here is whether Mr. Toma’s continued detention in light of the COVID-19 pandemic is punitive because it is not “‘rationally related to a legitimate nonpunitive governmental purpose’” or “‘appear[]s excessive in relation to that purpose.’” Kingsley, ––– U.S. ––––, 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at 561. See also Williamson Cty., 951 F.3d at 717 (pretrial detainee can establish unconstitutional punishment by showing that a restriction or conditions is “not rationally related to a legitimate government objective or is excessive in relation to that purpose”).
11

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The prohibition on punishment of civil detainees reflects the fact that “[i]n our society, liberty is the norm,” and detention is the “carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Accordingly, “detention violates that [Due Process] Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification . . . outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). See also Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003). “The bar for involuntarily removing someone from society against her will is high—quite understandably and quite legitimately so,” and thus there is a “heavy presumption” against such “a massive curtailment of liberty.” Howell v. Hodge, 710 F.3d 381, 385, 387 (6th Cir. 2013).
For civil detention not to be impermissible punishment, it must “bear[] [a] reasonable relation to the purpose for which the individual [was] committed,” and that purpose must be a narrow, non-punitive one. Zadvydas, 533 U.S. at 690. See also Foucha v. Louisianna, 504 U.S. 71, 79 (1992). Only when civil detention is closely linked to its nonpunitive purpose can the state’s interests “outweigh[] the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. As the Sixth Circuit recently explained, a civil (in that case pretrial) detainee can establish unconstitutional punishment “by showing that a
12

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restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020) (citing Bell, 441 U.S. at 538–39). In other words, the government cannot keep Mr. Toma detained unless his continued confinement in light of the COVID-19 pandemic is rationally related to a legitimate government objective, and not excessive in relation to that purpose.
The purpose of immigration detention is “effectuating an alien’s removal,” and immigration detention is only permissible if it “bear[s] a reasonable relation” to that purpose. Zadvydas, 533 U.S. at 690, 697. See also Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (finding that the goal of immigration detention is “to ensure the ability of the government to make a final deportation”). Thus, when considering the lawfulness of immigration detention, courts must weigh the reasonableness of the government’s asserted interest in using detention to help accomplish removal against the individual’s interest in freedom from such confinement. The COVID-19 pandemic affects both parts of that equation.
B. Mr. Toma’s Detention During the COVID-19 Crisis is Particularly Unreasonable. The government’s asserted interest in Mr. Toma’s continued detention is to
effectuate his removal. Even aside from Mr. Toma’s health concerns, and the risk of contracting COVID-19 in detention, that interest is incredibly weak. An Immigration Judge has already decided that Mr. Toma should not be removed. As
13

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Respondents conceded (see ECF No. 26-2 at ¶ 3), Mr. Toma
See ECF No. 20-5 at ¶ 6. He spent nearly six months in detention before being granted this relief; his detention now extends for, at least, months more because of the government’s appeal.
Moreover, even if he were to be denied relief at some point in the future, Mr. Toma’s removal is extremely unlikely to occur. Well before the COVID-19 crisis, this Court found, based on extensive evidence, that there is no significant likelihood that Iraqi nationals will be removed to Iraq in the reasonably foreseeable future. See Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020). Although Mr. Toma is not a class member in Hamama due to the date of his removal order, the Hamama court’s factual findings about the obstacles to removals to Iraq are directly relevant here.
Given the COVID-19 pandemic, the obstacles to Mr. Toma’s removal are even greater than at the time of the Hamama decision. Iraq has suspended all flights to and from Iraq, and it has also banned travel between Iraqi provinces.13 The WHO reports that, as of April 1, 2020 there were 697 total cases of COVID-19 in Iraq, and
13 See U.S. Embassy & Consulates in Iraq, COVID-19 Information (last updated Apr. 1, 2020), https://iq.usembassy.gov/covid-19-information/.
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that it expects the reported numbers to “spike in the coming two weeks.”14 See Ali v. Dep’t of Homeland Security, No. 4:20-cv-00140, 2020 WL 1666074 (S.D. Tex. Apr. 2, 2020) (discussing how COVID-19 pandemic has minimized petitioner’s likelihood of removal to Pakistan and ordering release).
The spread of COVID-19 in ICE facilities further erodes the government’s interest in detaining Mr. Toma for the months, if not years, it will take for their appeal of his relief to conclude, and for his removal to Iraq. Defendants’ own public health experts have called for widespread releases, and ICE has initiated a process of releasing vulnerable detainees.15 The government has, or should have, a strong interest in avoiding the “tinderbox” scenario of rapid COVID-19 spread in detention facilities. ICE detention facilities, including Calhoun, are not equipped to provide the necessary medical care. Ill detainees will consume desperately needed medical resources in local hospitals. And transmissions in jails will inevitably spread to the community, exponentially increasing the outbreak. Thakker v. Doll, No. 1:20-cv480 (M.D. Pa. Mar. 31, 2020), ECF No. 47 at 20 (ordering immediate release of
14 The Fight to Contain COVID-19 in Iraq, WHO (Apr. 1, 2020), http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid-19-iniraq.html.
15 See U.S. Immigration Officials Evaluate Vulnerable Detainees for Possible Release Amid Pandemic, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/reuters/2020/04/07/us/07reuters-health-coronavirususa-crime.html
15

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immigrant petitioners because “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments”).
By contrast, Mr. Toma’s interest in freedom from detention is incredibly strong, not least because of the danger to him of contracting COVID-19 from continued detention, as noted above. Moreover, if he is not released, not only will he be detained in a facility that will likely soon be subject to the rampant spread of COVID-19, but his detention there will be prolonged because it could well be many months or years before he could be removed to Iraq (if ever).
CONCLUSION For the foregoing reasons, this Court should grant Mr. Toma’s motion for a temporary restraining order and direct his immediate release from Calhoun.
16

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Dated: April 8, 2020 Respectfully submitted,

_/_s_/_M__ir_ia_m__J_._A__u_k_er_m__a_n_____ Miriam J. Aukerman (P63165) American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho* American Civil Liberties Union
Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org
Anand V. Balakrishnan* Michael K.T. Tan* Omar C. Jadwat* ACLU Foundation Immigrants’
Rights Project 125 Broad Street, 18th Floor

New York, New York 10004 (212) 549-2660
abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo* ACLU Foundation Immigrants’
Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

17

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.602417 PPaaggee2222ooff2233
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
_/_s_/ _Je_a_n_n_i_e_S_._R__h_ee__________ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill* Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: 202-223-7300 Facsimile: 202-223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com pjaffe@paulweiss.com rfiorille@paulweiss.com Jonathan M. Silberstein-Loeb* 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: 212-373-3000 Facsimile: 212-757-3990 jsilberstein-loeb@paulweiss.com Attorneys for Plaintiff-Intervenors * Application for admission forthcoming
18

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7247 fiflieledd0054/1/058/2/200 PPaaggeeIDID.2.602428 PPaaggee2233ooff2233
CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on April 8, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted,
_/_s/_J_e_a_n_n_i_e_S_._R_h_e_e__________

 
 CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.911377 PPaaggee11ooff9933

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff,

and

QAID ALHALMI, BALDEMAR BARAJAS SANTOYO, SERGIO BRITO, TOMAS CARDONA RAMIREZ, GUO YAN LIN CASTRO, RUBY BRISELDA ESCOBAR, JOSE MAURICIO GARCIA TOLEDO, JOSE GOMEZ SANTIZ, JULIO FERNANDO MEDINA EUCEDA, ISAAC ORTA VIEYRA, DAMARY RODRIGUEZ SALABARRIA, EMANUEL ROSALES BORBOA, RUDY SOSA CARILLO, AMER TOMA, and MIN DAN ZHANG,

Plaintiff-Intervenors, - against REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Defendants.

No. 2:20-cv-10829-JEL-APP

AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

CLASS ACTION

i

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INTRODUCTION 1. We are in the midst of a global pandemic on a scale not seen for over a century. Hundreds of thousands of people have died in a matter of months. Governments around the world are mandating social distancing, recognizing that physical separation is the only way to prevent a deadly, rapidly-spreading disease with no vaccine and no known cure. But that basic protection is entirely unavailable to people in civil immigration detention, who are incarcerated solely for the purpose of facilitating their removal—which in many cases is highly unlikely given the almost complete breakdown in international travel as a result of the pandemic. Across the country, hundreds of immigration detainees have been infected and thousands have been potentially exposed. Without this court’s timely intervention, many more immigration detainees will get sick, many will suffer severe symptoms, and some will die. 2. Petitioner-Plaintiffs (“Plaintiffs”1) are noncitizens who are detained in ICE custody at the Calhoun County Correctional Center (“Calhoun”) in the midst of the current COVID-19 pandemic. Conditions at Calhoun render it impossible for Plaintiffs to protect themselves though social distancing—where people remain at
1 The individuals bringing this action are Petitioners for purposes of habeas relief and Plaintiffs for purposes of injunctive and declaratory relief. Those against whom the action is brought are Respondents for purposes of habeas relief and Defendants for purposes of injunctive and declaratory relief. For simplicity, the terms Plaintiffs and Defendants will be used throughout.
1

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.911399 PPaaggee33ooff9933
least six feet apart from each other—which is the only effective means of preventing the spread of COVID-19. Plaintiffs live, sleep, bathe and eat cheek by jowl with other detainees, and have little or no access to masks, gloves, soap or hand sanitizer to guard against infection in such close quarters. The government’s own medical subject matter experts have described this as a “tinderbox scenario.”
3. The novel coronavirus that causes COVID-19 has quickly led to a global pandemic. No one is immune from infection. As of April 26, 2020, over 2.8 million people worldwide have received confirmed diagnoses of COVID-19, and over 193,000 of those people have died. COVID-19 is most likely to cause serious illness and death for older adults and those with certain underlying medical conditions or diseases, but it can also cause severe illness or death in healthy and young people. On average, the mortality rate for COVID-19 is ten times greater than influenza.
4. Patients of all ages with serious cases of COVID-19 require advanced medical support, including positive pressure ventilation and extracorporeal mechanical oxygenation in intensive care. That treatment can require the use of specialized equipment, like ventilators. The pandemic has put ventilators in high demand and short supply around the world, and has even led to shortages of less specialized equipment such as face masks, gloves, and other personal protective equipment (“PPE”).
2

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5. Patients who do not die from serious cases of COVID-19 often face prolonged recovery periods, including extensive rehabilitation from neurologic damage. The COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity. And, although the long-term effects of COVID-19 on the body are not yet known, experts predict that even those who have seemingly fully recovered from the disease could face ongoing health concerns, including serious impairment of major organs like the heart, liver, kidney, brain, and endocrine and blood systems.2 These complications can lead to dialysis dependence, neurologic injury, and heart failure.
6. The COVID-19 virus is highly contagious and can be spread through asymptomatic carriers. The only known effective measures to reduce the risk of serious illness or death caused by COVID-19 are social distancing and improved hygiene. As a result, unprecedented public health measures are being undertaken in all fifty states and around the world.
7. People in enclosed group environments, where they live, eat, bathe, and sleep in close proximity, face substantially increased danger of contracting COVID19, as already evidenced by the rapid spread of the virus in jails, prisons, and
2 Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors fear, Los Angeles Times (Apr. 10, 2020), https://www.latimes.com/science/story/2020-04-10/coronavirus-infection-cando-lasting-damage-to-the-heart-liver.
3

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.912411 PPaaggee55ooff9933
detention centers around the country. For people confined in such facilities it is virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission, even with the best-laid plans. The enormity of the dangers faced by people in such facilities has become self-evident as more of them are testing positive for COVID-19 with each passing day. As of April 24, 2020, there are at least 9,437 people in U.S. prisons with confirmed cases of COVID-19.3
8. For this reason, leading public health experts have recommended significant reductions in the populations of detention facilities, as well as prioritizing the prompt release from custody of people who are most vulnerable to COVID-19. This dual strategy protects those with the greatest vulnerability to COVID-19 from transmission of the virus and allows for greater risk mitigation for those who remain detained, as well as for people working in detention facilities. Releasing as many individuals as feasible, starting with the most vulnerable people, also reduces the burden on the region’s limited health-care infrastructure, as it lessens the likelihood
3 Katie Park et al., Tracking the Spread of Coronavirus in Prisons, The Marshall Project, Apr. 24, 2020, https://www.themarshallproject.org/2020/04/24/trackingthe-spread-of-coronavirus-in-prisons; Cary Aspinwall & Joseph Neff, These Prisons Are Doing Mass Testing For COVID-19—And Finding Mass Infections, Apr. 24, 2020, https://www.themarshallproject.org/2020/04/24/these-prisons-aredoing-mass-testing-for-covid-19-and-finding-mass-infections (reporting that “prisons that do aggressive testing are finding that infection is spreading quickly.”).
4

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.912422 PPaaggee66ooff9933
that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
9. For instance, as early as March 19, 2020, two medical subject matter experts for the Department of Homeland Security (“DHS”) sent a letter to Congress urging that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.” More recently, on April 7, 2020, House Oversight and Reform Committee Chairwoman Carolyn B. Maloney and Subcommittee on Civil Rights and Civil Liberties Chairman Jamie Raskin sent a letter to DHS, U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”) calling for the “immediate[] release [of] non-violent detainees, prioritizing those who are at higher risk for complications of coronavirus. Releasing these non-violent detainees will prevent the unnecessary infection, sickness, and death of the men and women who work in these facilities and those who are detained.”4 Despite public health experts and public officials’ consensus, ICE has failed to meaningfully respond to protect the health and safety of the many thousands of people in its custody, including the immigration detainees at Calhoun. ICE has
4 House Committee on Oversight and Reform Press Release, Chairs Maloney and Raskin Call on DHS to Release Non-Violent Migrant Detainees to Prevent Coronavirus Outbreak in Detention Facilities (Apr. 7, 2020), https://oversight.house.gov/news/press-releases/chairs-maloney-and-raskin-callon-dhs-to-release-non-violent-migrant-detainees.
5

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.912433 PPaaggee77ooff9933
demonstrated significant shortcomings in testing,5 screening of medically vulnerable
detainees,6 and general precautionary measures including social distancing and
hygiene.
10. Despite ICE’s claims that it has taken appropriate protective measures,
outbreaks of COVID-19 at its detention centers have rapidly escalated in the past
several weeks. Already, based solely on testing individuals who became ill rather
than through more comprehensive testing, ICE has confirmed five cases at the
nearby St. Clair facility in Port Huron, Michigan,7 representing one out of every
eight of the approximately 40 immigration detainees housed there.8
5 On April 17, 2020, ICE Director Albence confirmed “that only 400 detainees [had] been tested” for COVID-19, out of more than 32,000 nationwide. Over one hundred of those tests came back positive. See House Committee on Oversight and Reform Press Release, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020), https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-releaseasylum-seekers-and-other-non-violent-detainees
6 See House Committee on Oversight and Reform Press Release, Chairs Maloney and Raskin Call on DHS to Release Non-Violent Migrant Detainees to Prevent Coronavirus Outbreak in Detention Facilities, supra n. 4 (noting that, as of April 17, 2020, “ICE [did] not plan to release any other detainees to slow the spread of coronavirus in detention facilities” but had only “released fewer than 700 vulnerable individuals and is continuing to detain more than 32,000 men and women”).
7 See U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated Apr. 24, 2020).
8 Data on the total number of inmates, including pretrial and sentenced prisoners, infected at St. Clair is not available, nor is data on the number of infected staff.
6

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11. Across Michigan, as of April 26, 2020, the Michigan Department of Corrections (“MDOC”) reports 1031 cases and 32 deaths among Michigan state inmates, and 81 cases and one death among inmates in federal correctional facilities,9 demonstrating the particular vulnerabilities of congregate settings like detention facilities. In response, Governor Gretchen Whitmer has recommended that individuals who are older or have underlying health conditions, among others, be considered for early release. Some county jails in Michigan have already begun to reduce their inmate populations.
12. The Plaintiffs are all immigrants detained at Calhoun.10 They bring this action to protect themselves, and a class of similarly situated persons detained at

9 State

of

Michigan.

Coronavirus

Michigan

Data,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html

(last accessed April 26, 2020).

10 Plaintiffs’ Amended Petition for the Writ of Habeas Corpus Pursuant to 28 U.S.C.

§ 2241 and Complaint for Injunctive and Declaratory Relief, including the

addition of further plaintiffs, is filed pursuant to Federal Rule of Civil Procedure

15(a)(1) allowing a party to “amend its pleading once as a matter of course” in the

initial stages of litigation. The Sixth Circuit—in accordance with the holdings of

a majority of the federal courts of appeal—has indicated that Rule 15(a)(1), rather

than Rule 21, is the proper vehicle for a plaintiff to add new parties when

amending a complaint. See Broyles v. Correctional Medical Services, No. 08-

1638, 2009 WL 3154241 (6th Cir. Jan 23, 2009); Galustian v. Peter, 591 F.3d

724, 730 (4th Cir. 2010); Bibbs v. Early, 541 F.3d 267, 275 n. 39 (5th Cir. 2008);

U.S. ex rel. Precision Co. v. Koch Indus., Inc., 31 F.3d 1015, 1019 (10th Cir.

1994); Wash. v. N.Y. City Bd. of Estimate, 709 F.2d 792, 795 (2d Cir. 1983); Miller

v. Conway, 331 Fed. App’x 664, 665 (11th Cir. 2009); but see Moore v. State of

Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993). Should the Court have questions

regarding the applicability of Rule 15, Plaintiffs are prepared to file an immediate

motion regarding the propriety of proceeding under Rule 15 as of right, and, or,

7

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Calhoun, from COVID-19. If the Plaintiffs and class members continue to be detained at Calhoun during the outbreak of COVID-19 under current facility conditions without the ability to protect themselves through social distancing, they face a danger that is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original).
13. Accordingly, the Plaintiffs and the class ask this Court to declare that the conditions of confinement at Calhoun are unconstitutional under the Fifth Amendment because they do not permit social distancing and other measures necessary to minimize the risk of infection with COVID-19; declare that steps set out in the ICE Enforcement and Removal Operations (“ERO”) COVID-19 Pandemic Response Requirements, even if implemented at Calhoun, are inadequate to reduce the risk that COVID-19 poses to Plaintiffs’ health and safety to a level that is constitutional under the Fifth Amendment; and declare, based on expert evidence, what steps must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights, including a determination of the population level that can be detained consistent with social distancing and other COVID-19
to proceed by permission under Rule 21, so that these procedural niceties do not delay speedy resolution of the urgent substantive questions at issue.
8

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prevention requirements. The Court should also grant injunctive relief to the individual named Plaintiffs, ordering their immediate release until Defendants have taken those steps and have reduced the population to the level that the Court has found necessary to comply with the Constitution.
14. Plaintiffs Qaid Alhalmi, Tomas Cardona Ramirez, Julio Fernando Medina Euceda, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Amer Toma, and Min Dan Zhang (the “Subclass Named Plaintiffs”) are older adults and/or have underlying medical conditions, which puts them at an even higher risk of serious COVID-19 infection than the general detained population. They seek to represent a subclass of similarly situated persons. Their detention, and that of the subclass they seek to represent, is unconstitutional because Defendants cannot ensure their reasonable safety given these Plaintiffs’ particular medical vulnerabilities.
15. Accordingly, this Court should issue a Writ of Habeas Corpus for the Subclass Named Plaintiffs and the subclass on the ground that their continued detention violates the Due Process Clause, order their immediate release with appropriate precautionary public health measures, and grant corresponding classwide declaratory relief. The Court should also issue injunctive relief ordering the immediate release and barring the redetention of the Subclass Named Plaintiffs.
9

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16. Finally, because of the breakdown in international travel, the removal of Plaintiffs Alhalmi, Escobar, Salabarria and Toma is not significantly likely in the reasonably foreseeable future, therefore their detention, or in the case of Mr. Toma redetention, is prohibited under Zadvydas v. Davis, 533 U.S. 678 (2001).
PARTIES A. Subclass Named Plaintiffs
17. Plaintiff Qaid Alhalmi is a 58-year-old citizen of Yemen who has been detained by ICE in Calhoun since September 2019.
, Mr. Alhalmi is at high risk for severe illness or death if he contracts COVID-19.
18. Plaintiff Tomas Cardona Ramirez is a 38-year-old citizen of Guatemala who has been detained by ICE in Calhoun since February 2020. Mr. Cardona Ramirez
Mr. Cardona Ramirez is at high risk for severe illness or death if he contracts COVID-19.
19. Plaintiff Julio Fernando Medina Euceda is a 54-year-old citizen of Honduras who has been detained by ICE in Calhoun since January 24, 2020. As a
10

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result of his age, Mr. Medina Euceda is at high risk for severe illness or death if he contracts COVID-19.
20. Plaintiff Damary Rodriguez Salabarria is a 46-year-old citizen of Cuba. Ms. Rodriguez Salabarria was detained by ICE in McAllen, Texas from August 1, 2019 to August 10, 2019, when she was transferred to Calhoun. She has remained at Calhoun since then. Ms. Rodriguez Salabarria suffers from
Prior to entering the United States in August 2019, Ms. Rodriguez Salabarria had
As a result of her medical conditions, Ms. Rodriguez Salabarria is at high risk for severe illness or death if she contracts COVID-19.
21. Plaintiff Emanuel Rosales Borboa is a 35-year-old citizen of Mexico who has been detained by ICE in Calhoun since March 9, 2020. Mr. Rosales Borboa
Mr. Rosales Borboa is at high risk for severe illness or death if he contracts COVID-19.
11

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.912499 PPaaggee1133ooff9933
22. Plaintiff Amer Toma is a 55-year-old citizen of Iraq who was detained by ICE in Monroe County Jail from September 21, 2019 to February, 2020, at which point he was moved to Calhoun. He was released from Calhoun on April 22, 2020, pursuant to this Court’s temporary restraining order, which has since been converted to a preliminary injunction. In 2015, Mr. Toma
While at Calhoun, Mr. Toma used a wheelchair As a result of his age and medical conditions, Mr. Toma
is at high risk for severe illness or death if he contracts COVID-19. 23. Plaintiff Min Dan Zhang is a 50-year-old citizen of China who has
been detained by ICE in Calhoun since August 22, 2019. As a result of her age, Ms. Zhang is at high risk for severe illness or death if she contracts COVID-19.
B. Other Named Plaintiffs 24. Plaintiff Baldemar Barajas Santoyo is a 47-year-old citizen of
Mexico who has been detained by ICE in Calhoun since February 12, 2020. As a result of the conditions of confinement at Calhoun, Mr. Barajas is at high risk of contracting COVID-19.
12

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913500 PPaaggee1144ooff9933
25. Plaintiff Sergio Brito is a 37-year-old citizen of Mexico who has been detained by ICE in Calhoun since December 9, 2019. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
26. Plaintiff Guo Yan Lin Castro is a 45-year-old citizen of China who has been detained by ICE in Calhoun since October 2019. Ms. Castro
The extent of Ms. Castro’s particular medical vulnerability is unknown, pending receipt of medical records. Regardless, as a result of the conditions of confinement at Calhoun, Ms. Castro is at high risk of contracting COVID-19.
27. Plaintiff Ruby Briselda Escobar11 is a 31-year-old citizen of El Salvador who was detained by ICE at Calhoun from November 18, 2018 to April 6, 2020. After she moved to intervene in this action, Ms. Escobar was released by ICE under an order of supervision and release conditions. She remains subject to redetention at any time. Ms. Escobar
11 Although she remains a plaintiff in this action, Ms. Escobar is not seeking to represent the class or subclass.
13

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913511 PPaaggee1155ooff9933
Ms. Escobar is at high risk for severe illness or death if she contracts COVID-19.
28. Plaintiff Jose Mauricio Garcia Toledo is a 45-year-old citizen of Mexico who has been detained by ICE in Calhoun since February 2020. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
29. Plaintiff Jose Gomez Santiz is a 23-year-old citizen of Mexico who has been detained by ICE since January 2020. He was transferred to Calhoun from Gratriot County Jail on February 14, 2020, and has been detained at Calhoun since. As a result of the conditions of confinement at Calhoun, Mr. Gomez Santiz is at high risk of contracting COVID-19.
30. Plaintiff Isaac Orta Vieyra is a 32-year-old citizen of Mexico who has been detained by ICE in Calhoun since January 2020. As a result of the conditions of confinement at Calhoun, Mr. Orta Vieyra is at high risk of contracting COVID19.
31. Plaintiff Rudy Sosa Carillo is a 23-year-old citizen of Guatemala who has been detained by ICE in Calhoun since February 2020. As a result of the conditions of confinement at Calhoun, Mr. Sosa Carillo is at high risk of contracting COVID-19.
14

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913522 PPaaggee1166ooff9933
C. Respondent-Defendants (“Defendants”) 32. Defendant Rebecca Adducci is the Detroit District Director of ICE.
In that position, she is responsible for carrying out ICE’s immigration detention operations at Calhoun. Defendant Adducci is a legal custodian of Plaintiffs, and the proper respondent for a habeas petition. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). She is sued in her official capacity.
33. Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. In that position, he is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
34. Defendant Chad Wolf is Acting Secretary of DHS. In that position, he is responsible for the enforcement of the immigration laws and supervises Ms. Adducci at ICE Detroit Field Operations. Defendant Wolf is a legal custodian of Plaintiffs. He is sued in his official capacity.
35. Defendant William P. Barr is Attorney General of the United States and chief officer of the U.S. Department of Justice. He is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, routinely does and transacts business in the Eastern District of Michigan, and is a legal custodian of Plaintiff. He is sued in his official capacity.
15

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913533 PPaaggee1177ooff9933
36. Defendant ICE is a federal law enforcement agency within DHS. ICE is responsible for criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. ERO, a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.12
JURISDICTION AND VENUE 37. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction) and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 38. Venue is proper in the U.S. District Court for the Eastern District of Michigan under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
12 The petition/complaint filed by Janet Malam named Matthew T. Albence, Chad Wolf, William P. Barr, and ICE as Respondent-Defendants. Plaintiffs here seek injunctive and declaratory, but not habeas relief, from those defendants. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). The petition/complaint filed by Ms. Malam also named Michigan Department of Corrections Director Heidi E. Washington as a Respondent-Defendant. Plaintiffs here do not bring claims against Ms. Washington.
16

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913544 PPaaggee1188ooff9933
FACTS A. COVID-19 Poses a Grave Risk of Harm, Including Serious Illness or
Death 39. COVID-19 is a disease that has reached pandemic status. As of April 26, 2020, at least 2.8 million people worldwide have confirmed diagnoses, including over 899,000 people in the United States. Over 193,000 people have died as a result of COVID-19 worldwide, including at least 46,000 in the United States.13 In Michigan, there are at least 37,778 confirmed cases and 3,315 deaths.14 The transmission of COVID-19 is expected to continue grow to exponentially. 40. Everyone is at risk from COVID-19, with even young and otherwise healthy people becoming gravely ill or dying from the disease. Older people and people with certain medical conditions face even greater chances of serious illness or death from COVID-19. Our current knowledge of COVID-19 is limited, with new data and studies released practically daily.
13 Coronavirus disease 2019 (COVID-19) Situation Report – 97, World Health Organization (Apr. 26, 2020). These numbers have increased drastically since Plaintiffs Escobar and Toma first filed this Petition, just three weeks ago. At that time, there were only 1,056,159 confirmed cases worldwide, including roughly 241,703 people in the United States, and 57,206 people had died worldwide, including just 5,854 in the United States. See Dkt. 17, at 7.
14 State of Michigan. Coronavirus Michigan Data, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last accessed April 26, 2020).
17

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913555 PPaaggee1199ooff9933
41. We do know that COVID-19 causes fever, cough, and shortness of breath, which can be severe. The COVID-19 virus can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases can cause a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle, which can also affect the heart’s electrical system, reducing the heart’s ability to pump. Reduced pumping can lead to rapid or abnormal heart rhythms in the short term, and to long-term heart failure that limits exercise tolerance and the ability to work. In addition, COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine-release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.
42. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
43. People who contract COVID-19, including even some younger and healthier people, may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and, in extreme cases, extracorporeal mechanical oxygenation. People in higher risk categories will likely need advanced support, which requires highly specialized equipment that is in limited supply, and an entire
18

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913566 PPaaggee2200ooff9933
team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians. This level of support can quickly exceed local health-care resources.
44. While some class members are healthier than others, the entire class is at grave risk of contracting COVID-19 and facing serious harm given the current conditions in Calhoun. The Centers for Disease Control and Prevention (“CDC”) has reported that up to 20% of coronavirus hospitalizations in the United States were of people under the age of 44. And the World Health Organization (“WHO”) has reported that, globally, 10–15% of adults under the age of 50 who contract COVID19 have moderate to severe cases.
45. Some young people who become seriously ill or die from COVID-19 have pre-existing medical conditions, but many do not.15 For example, in New York, 36 percent of people between 30 and 39 who died from the virus had no preexisting conditions.16
15 See Ariana Eunjung Cha, Young and middle-aged people, barely sick with covid19, are dying of strokes, Washington Post (Apr. 25, 2020), https://www.washingtonpost.com/health/2020/04/24/strokes-coronavirus-youngpatients/.
16 See Chris Mooney, et. al., Hundreds of young Americans have now been killed by the coronavirus, data shows, Washington Post (Apr. 8, 2020), https://www.washingtonpost.com/health/2020/04/08/young-peoplecoronavirusdeaths/.
19

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913577 PPaaggee2211ooff9933
46. Doctors and scientists do not know with certainty why some otherwise healthy young people are so susceptible to COVID-19, but some evidence suggests that exposure to larger viral loads—such as occurs with close, in-person interaction in enclosed spaces, at short distances—may lead to more serious infection.17
47. As another federal court held in provisionally certifying a class of immigration detainees: It is a “troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us.” Savino v. Souza, 20-cv-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020
48. And just recently on April 23, 2020, a federal district court in California certified and granted a preliminary injunction for all detainees at an ICE facility in Adelanto, California. See Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJHPVCx, 2020 WL 1952656, at *3 (C.D. Cal. Apr. 23, 2020) (“While there are not, yet, any confirmed COVID-19 cases at Adelanto, it is, merely, fortuitous that an outbreak has not yet occurred, especially given the lax safety standards, now, in place.”).
17 See Joshua Rabinowitz and Caroline Bartman, These Coronavirus Exposures Might be the Most Dangerous, New York Times (Apr. 1, 2020), https://www.nytimes.com/2020/04/01/opinion/coronavirus-viral-dose.html.
20

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913588 PPaaggee2222ooff9933
49. The need for care, including intensive care, and the likelihood of death are much higher from COVID-19 infection than from influenza. Sources differ, but all accounts are grave: sources report fatality rates ranging from nearly 2% to over 15% for populations at high risk for complications from COVID-19, like the elderly or those with underlying medical conditions. Moreover, recent studies estimate that the COVID-19 fatality rate for the general population ranges from six to thirteen times higher than the fatality rate of a severe seasonal influenza, even in countries with highly effective healthcare systems.
50. Patients who do not die from COVID-19, especially those in high-risk categories, often experience a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity. Moreover, the ongoing sequelae of COVID-19 are unknown, and physicians warn that the results could include decreased respiratory ability for life as well as increased vulnerability to other medical issues that arise in the future.
51. There is neither a vaccine against COVID-19 nor any known medication to prevent or treat infection from COVID-19. On March 26, 2020, Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases (NIAID), estimated that a vaccine could be developed in 18 months. This estimate is optimistic. Vaccines typically take between eight and 10 years to
21

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.913599 PPaaggee2233ooff9933

develop. Vaccines usually must be tested in four phases before they attain regulatory approval: (1) animal testing, (2) small-group human testing to assess safety and monitor immune response, (3) medium-sized group testing to assess members of atrisk groups, and (4) large-scale testing on thousands of people. Moreover, more time is needed after approval to distribute the vaccine across the country. With these long trials and distribution schedules in mind, other experts have expressed reservations about the 18-month estimate given by Dr. Fauci.
52. Nor is there widespread testing or reliable antibody testing, other measures which experts say could eventually help to mitigate outbreaks of the disease.18

18 See, e.g., Sheryl Gay Stolberg et al., Testing Remains Scarce as Governors Weigh

Reopening States, N.Y. Times (Apr. 25, 2020),

https://www.nytimes.com/2020/04/25/us/politics/virus-testing-shortages-states-

trump.html (“As governors decide about opening their economies, they continue

to be hampered by a shortage of testing capacity, leaving them without the

information that public health experts say is needed to track outbreaks and contain

them.”); Rob Stein, Study Raises Questions About False Negatives From Quick

COVID-19 Test, NPR (Apr. 21, 2020), https://www.npr.org/sections/health-

shots/2020/04/21/838794281/study-raises-questions-about-false-negatives-from-

quick-covid-19-test (reporting that a popular test developed by Abbott

Laboratories “appears to be the least accurate test now in common use,” following

a study done by the Cleveland Clinic); Laurie McGinley, Dozens of coronavirus

antibody tests on the market were never vetted by the FDA, leading to accuracy

concerns,

Washington

Post.

(Apr.

19,

2020),

https://www.washingtonpost.com/health/2020/04/19/fda-antibody-tests-

coronavirus-review/ (reporting that in mid-March 2020, the Food and Drug

Administration allowed “more than 90 [antibody tests] on the market without prior

review, including some marketed fraudulently and of dubious quality.”).

22

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914600 PPaaggee2244ooff9933
53. The only known effective measures to reduce the risk of illness, or death from COVID-19 are to prevent people from being infected in the first place. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting people from COVID19.
54. Projections by the CDC indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the United States alone.
55. As of April 26, 2020, there were 37,778 confirmed cases of COVID-19 and 3,315 deaths from COVID-19 in Michigan.19 The number of confirmed cases has nearly tripled in the last three weeks, and the number of deaths has increased by a factor of nearly 7 during the same time.20
56. The COVID-19 outbreak in Michigan has resulted in unprecedented health measures to facilitate and enforce social distancing. On March 24, Governor Gretchen Whitmer issued Executive Order 2020-21, suspending through April 13 all
19 State of Michigan. Coronavirus Michigan Data, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last accessed April 26, 2020).
20 See Plaintiff-Intervenors Motion for Temporary Restraining Order, Dkt. 17, at 17.
23

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914611 PPaaggee2255ooff9933
activities unnecessary to sustain or protect life.21 The order requires employees to work from home unless they are considered “essential” or they work in jobs related to public safety, health care, or other critical industries. The order also requires individuals who leave their home to adhere to social distancing measures recommended by the CDC, including “remaining at least six feet away from people outside the individual’s household to the extent feasible under the circumstances.”
57. Governor Whitmer has extended the initial Executive Order 2020-21 twice: first on April 9, 2020, and again on April 24, 2020, with slight modifications each time.22 The current stay-at-home order extends through May 15, 2020. B. COVID-19 Spreads Rapidly in Congregate Settings Like ICE Detention
Centers and Correctional Facilities 58. The risk of widespread COVID-19 infection is especially great in
congregate settings like jails and immigration detention centers, where detainees are unable to socially distance or practice the necessary hygiene strategies to mitigate infection or spread of the disease.

21 Michigan

Executive

Order

2020-21,

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--

,00.html (last accessed April 23, 2020).

22 Michigan

Executive

Order

2020-42,

available

at

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--

,00.html (last accessed Apr. 23, 2020); Michigan Executive Order 2020-59,

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-526894--

,00.html (last accessed Apr. 25, 2020).

24

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914622 PPaaggee2266ooff9933
59. This Court has already ordered the release of Plaintiffs Malam and Toma, recognizing that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions[.]” Opinion and Order Converting Temporary Restraining Order Into Preliminary Injunction, Dkt. 41, at 8. See also Fofana v. Albence, No. 2:20-cv-10869-GAD-DRG, Dkt. 15 (E.D. Mich. Apr. 15, 2020); Zaya v. Adducci, No. 5:20-cv-10921-JEL-APP, Dkt. 9 (E.D. Mich. Apr. 18, 2020).
60. Likewise, courts across the state and country are also ordering the release of people in civil immigration custody in recognition of the threat posed by COVID-19 in congregate settings. See e.g., Xochihua-Jaimes v. Barr, No. 1871460, 2020 WL 1429877 (9th Cir. Mar. 24, 2020); Basank v. Decker, No. 20-cv2518, --- F. Supp. 3d ----, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Bravo Castillo v. Barr, No. 20-605-TJH (AFMx), --- F. Supp. 3d ----, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, No. 20-cv-2472, --- F.3d ----, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Thakker v. Doll, No. 1:20-CV-480, --- F.3d ----, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020); Hernandez v. Wolf, No. 20-cv617, Dkt. 17 (C.D. Cal. Apr. 1, 2020); Robles v. Wolf, No. 5:20-cv-627-TJH-GJS, Dkt. 32, 35-39 (C.D. Cal. Apr. 2, 2020); Hope v. Doll, No. 20-cv-00562, ECF No.
25

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914633 PPaaggee2277ooff9933
11 (M.D. Pa. Apr. 7, 2020), motion for reconsideration denied, ECF No. 22 (Apr. 10, 2020); Bahena Ortuño v. Jennings, No. 20-cv-2064, 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020); Rafael L.O. v. Tsoukaris, No. 2:20-cv-3481-JMV, 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Bent v. Barr, No. 4:19-cv-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); John Doe v. Barr, No. 3:20-cv-02141-LB, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020); Ixchop Perez v. Wolf, No. 19-cv-05191, 2020 WL 1865303 (N.D. Cal. Apr. 14, 2020); Arriaga Reyes v. Decker, No. 20-cv-3600, ECF No. 27 (D. N.J. Apr. 14, 2020); Vazquez Barrera v. Wolf, No. 20-cv-01241, 2020 WL 1904497 (S.D. Tex. April 17, 2020); Amaya-Cruz v. Adducci, No. 1:20cv-789, 2020 WL 1903123 (D. Oh. Apr. 18, 2020); Durel B. v. Decker, No. 2:20cv-03430-KM, 2020 WL 1922140 (D.N.J. Apr. 21, 2020); Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC, Dkt. 52 (C.D. Cal. Apr. 23, 2020); Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020). These orders recognize that “[t]he risk of contracting COVID-19 in tightly confined spaces, especially jails, is now exceedingly obvious” and that “public health authorities predict [COVID-19] will especially impact immigration detention centers.” Basank, 2020 WL 1481503, at *5; Xochihua-Jaimes, 2020 WL 1429877, at *1.23
23 In addition, on April 20, 2020, the United States District Court for the Central District of California, in a nation-wide class action, required ICE to review cases and provide custody redeterminations for medically vulnerable detainees, an
26

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914644 PPaaggee2288ooff9933
61. In numerous cases, courts have ordered releases, even where the plaintiffs do not fall within narrow definitions of those at higher risk. See, e.g., Bravo Castillo v. Barr, No. 20-605-TJH (AFMx), --- F. Supp. 3d ----, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Jimenez v. Wolf, No. 1:18-cv-10225-MLW, Dkt. 507, Memorandum and Order (D. Mass. Mar. 26, 2020); Jimenez v. Wolf, No. 1:18cv-10225-MLW, Dkt. 507, Memorandum and Order (D. Mass. Mar. 26, 2020); Sallaj v. U.S. Immigration & Customs Enf’t, No. 1:20-cv-00167-JJM-LDA, Dkt. 18 (D.R.I. Apr. 24, 2020).
62. Given the great risk of infection posed by COVID-19, the fact that prisoners and detainees cannot engage in proper hygiene and isolate themselves from infected residents or staff, and because the testing is inadequate to detect whether residents or staff are carrying the disease asymptomatically, it is more likely that the virus has reached Calhoun and may already be infecting prisoners and detainees, including Plaintiffs.
63. The staff at jails like Calhoun also have a higher risk of contracting coronavirus due to the lack of protective gear and the impossibility of social distancing. Accordingly, detainees and other facility staff are at very high risk for contracting the virus. It is only a matter of time until Calhoun faces a similar crisis.
important but different form of relief from that requested here. Fraihat v. U.S. Immigration and Customs Enforcement, No. EDCV 19-1546 JGB (SHKx), --- F. Supp. 3d ----, 2020 WL 1932570 (C.D. Cal., April 20, 2020).
27

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914655 PPaaggee2299ooff9933
It is highly likely, if not inevitable, that COVID-19 will reach Calhoun if it is not already present.
64. The early evidence bears this out. Nationwide, ICE has reported 317 confirmed cases of COVID-19 among immigration detainees across 30 detention facilities, as of April 24, 2020. ICE also reports 35 confirmed cases amongst ICE employees at 11 detention centers and 89 among ICE employees not assigned to detention facilities. But those numbers vastly understate the problem, because, as of April 21, 2020, ICE had tested only 1.32% of the people in its custody: 425 of its 32,309 detainees. Of those tested, 60% had COVID-19.24
65. Moreover ICE’s figures do not cover positive cases among non-ICE employees who have close contact with ICE detainees, such as staff at local jails that house ICE detainees.25 Nor do ICE’s figures reflect the number of positive cases among non-immigrant detainees held at local jails that also house ICE detainees. For example, ICE reports that as of April 24, 2020, five detainees and no staff have tested positive at the St. Clair Jail.26 However, declarations submitted in litigation
24 Monique Madan, ICE has tested a tiny fraction of its detainees for COVID-19. Most of them are positive, Miami Herald (Apr. 22, 2020), https://www.miamiherald.com/news/local/immigration/article242203726.html.
25 Monique O. Madan, Two Workers at ICE Detention Center in Miami Test Positive for Coronavirus, Miami Herald (Apr. 6, 2020), https://www.miamiherald.com/news/local/immigration/article241791511.html.
26 See U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated Apr. 24, 2020).
28

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914666 PPaaggee3300ooff9933
seeking the release of an immigrant at St. Clair who contracted COVID-19 before
he could be released showed that as of April 10, 2020, there were also six inmates
and three St. Clair staff with confirmed cases. See Albino-Martinez v. Adducci, No.
2:20-cv-10893-SJM-DRM, ECF No. 10, at 23 (E.D. Mich. Apr. 10, 2020). Current
numbers of infections for non-immigrant inmates and facility staff at St. Clair are
not publicly reported by ICE.
66. Over the past month, more than nine thousand COVID-19 diagnoses
have been confirmed at local, state, and federal correctional facilities across the
United States. As of April 26, 2020, the Federal Bureau of Prisons (“BOP”) reports
730 federal inmates and 317 BOP staff with positive cases and 26 federal inmate deaths.27 Cook County Jail in Illinois has over 500 confirmed cases.28 California’s Department of Corrections has reported 148 confirmed cases.29 At a single jail in
New York City, 253 inmates had already tested positive for coronavirus as of April 5, 2020.30 And, the rate of infection in New York City jails is more than seven times
27 Federal Bureau of Prisons COVID-19 Cases, available at https://www.bop.gov/coronavirus/ (last accessed April 26, 2020).
28 Cheryl Corley, The COVID-19 Struggle in Chicago’s Cook County Jail, NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833440047/the-covid-19struggle-in-chicagos-cook-county-jail
29 California Department of Corrections, Population COVID-19 Tracking, https://www.cdcr.ca.gov/covid19/population-status-tracking/ (last updated Apr. 26, 2020).
30 Josiah Bates, New York’s Rikers Island Jail Sees First Inmate Death from COVID19, Time (Apr. 6, 2020), https://time.com/5816332/rikers-island-inmate-diescoronavirus/.
29

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914677 PPaaggee3311ooff9933
as high as the rate of infection in New York City overall. When the Ohio Department of Corrections performed comprehensive testing, it found that 2,011 out of 2,578 inmates, which is 78% of the inmate population, at one of its facilities have COVID19.31 Statewide, 3,792 inmates tested positive for COVID-19, meaning that incarcerated people made up 20% of the state’s cases as of April 22, 2020.32
67. Similarly, COVID-19 has spread rapidly among those in the custody of MDOC. From March 23 to April 17, the number of confirmed cases of coronavirus in just one jail, Parnall Correctional Facility, multiplied from one inmate to 227 people—163 inmates and 64 staff—meaning that one out of every ten inmates had tested positive for COVID-19. As of April 17, this was higher than the rates of facilities in Chicago and New York.
68. MDOC has already placed four prisons on partial lockdown because of the rising number of inmates testing positive for the virus. As of April 26, 2020, MDOC reports 1031 cases and 32 deaths among Michigan state inmates, and 81 cases among inmates in federal correctional facilities.33 Press reports say that at least 169 MDOC staff have contracted COVID-19, and at least 2 MDOC staff have

31 Id.

32 Id.

33 State

of

Michigan.

Coronavirus

Michigan

Data,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html

(last accessed April 26, 2020).

30

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914688 PPaaggee3322ooff9933
died.34 The problem is almost certainly worse than reported given the dearth of available testing in such facilities.
69. Despite mitigation efforts, the virus continues to infiltrate and spread through correctional facilities. The top doctor at Rikers Island in New York City has lamented how extensive mitigation efforts failed to slow the spread of the disease at the jail.35 He joins a chorus of public health experts in concluding that for such efforts to be effective, they must be paired with a reduction in the number of people incarcerated.
70. Recognizing the limits of any social distancing or hygiene-based mitigation strategy in a correctional facility, on March 29, Governor Whitmer included in Executive Order 2020-29 intended to protect vulnerable populations in jails, prisons, and juvenile detention facilities from the spread of COVID-19.36 The order recommended that individuals who are older or have underlying health conditions, among others, be considered for early release. Executive Order 2020-29

34 John Agar, Coronavirus a ‘death sentence’ in Michigan prisons, inmate says,

Michigan Live (Apr. 14, 2020), https://www.mlive.com/news/grand-

rapids/2020/04/coronavirus-a-death-sentence-in-michigan-prisons-inmate-

says.html

35 Miranda Bryant, Coronavirus spread at Rikers is a “public health disaster,” says

jail’s top doctor, The Guardian (Apr. 1, 2020), https://www.theguardian.com/us-

news/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster.

36

Michigan

Executive

Order

2020-29,

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--

,00.html (last accessed April 23, 2020).

31

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.914699 PPaaggee3333ooff9933
also restricted the use of out-of-home confinement for juveniles. Some county jails in Michigan have already begun to reduce their inmate populations. Macomb County Jail, for example, has reduced its inmate population from 875 to 648. ICE must follow suit at Calhoun. C. ICE’s Protocols Are Insufficient To Prevent Widespread Transmission of
COVID-19 in Custody 71. On April 10, 2020, in response to the rapid spread of COVID-19
through ICE facilities, ICE released “COVID-19 Pandemic Response Requirements”,37 a set of supplemental guidance for facilities housing immigration detainees.
72. Even if ICE were to fully implement its own COVID-19 Guidance at Calhoun, Plaintiffs would remain at significant risk of contracting COVID-19 because these protocols fall well short of what public health experts say is necessary to protect individuals in detention settings.
73. Glaringly, the ICE Guidance does not mandate implementation of many its own protocols, but instead requires compliance only to the extent “practicable” or “whenever possible.” This malleability allows facilities to claim compliance with the ICE Guidance without actually implementing crucial safeguards.
37 U.S. Immigration & Customs Enforcement, COVID-19 Pandemic Response Requirements 11 (Apr. 10, 2020) (“ICE Guidance”), ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
32

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.915700 PPaaggee3344ooff9933
74. For example, the ICE Guidance does not mandate social distancing but merely recommends it. Indeed, ICE concedes that “strict social distancing may not be possible in congregate settings such as detention facilities.” It also does not address how social distancing can be achieved in dense housing units, where detainees must share sleeping quarters, communal spaces, showers, and bathrooms and are surrounded by dozens of others each day and night, including during mandatory lock-downs.
75. The ICE Guidance fails entirely to account for presymptomatic or asymptomatic transmission, which especially impacts high-risk detainees. It does not establish special protections for high-risk detainees until they are already symptomatic, by which point it is too late to meaningfully mitigate the risks of transmission to others, serious illness, or death.
76. Nor does the ICE Guidance address the lack of comprehensive COVID19 testing at ICE facilities. There is no guidance for clinical staff on when to test patients for COVID-19, which leaves detained patients at a significant disadvantage. Without any clear guidance for testing, ICE will be unable to identify “confirmed cases,” to timely take necessary precautions to contain the spread of COVID-19.
77. Thus, public health experts like Dr. Homer Venters, an epidemiologist and correctional health expert, who have reviewed ICE’s COVID-19 protocols and guidance, have concluded that they contradict or omit several important CDC
33

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..7463 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.915711 PPaaggee3355ooff9933
guidelines, rendering them “simply insufficient to address the structural aspects of detention facilities that make transmission of COVID-19 so rapid.”
D. Conditions at the Calhoun County Correctional Center Create Heightened Risk of COVID-19 Infection 78. The current conditions at Calhoun, where people live, sleep, bathe, and
eat in close proximity, pose a grave public health risk for the spread of COVID-19. People cannot remain more than six feet apart, scant medical resources are available, and many detainees are at high risk of serious infection.
79. At Calhoun, Plaintiffs and other detainees are kept together in “pods” containing groups of up to sixty people, who sleep, eat, bathe, and live in closely confined quarters. Most detainees sleep close together in cells or small communal rooms, in which they cannot avoid being within six feet of each other; more commonly, they are forced to be two or three feet apart, often in bunk beds. Detainees share a limited number of communal showers, bathroom stalls, and telephones, among other items in the facility.
80. Both food preparation and service are communal at Calhoun; detainees eat all meals together, sitting at shared tables with multiple other people at armslength. Certain detainees are responsible for distributing food trays to the pods, and those detainees do not wear protective gear like masks or gloves.
81. It is impossible for detainees to shelter in place; instead they must interact with strangers who may be carriers for the disease. Detainees and staff
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regularly come and go. Detainees are transported throughout the facility in close proximity to each other and staff. They regularly interact with individuals from other pods in the hallways, in the recreation area, and even while waiting to get their required medications. Detainees face the further risk of disease transmission through their work, as many work cleaning the kitchen, the laundry area, the bathrooms, and their own pods.
82. Many detainees have also reported concerns about inadequate hygienic practices. Detainees often lack access to soap and are not provided with hand sanitizer. They also have not been provided with protective equipment like gloves or face masks to wear in the normal course, and have rarely observed staff wearing such equipment.
83. The current protective measures implemented at Calhoun simply are not enough to protect Plaintiffs from COVID-19. Calhoun claims it is requiring staff to have their temperatures taken when they arrive at work, but this precaution is insufficient to detect a virus like COVID-19 or prevent its spread throughout Calhoun, because infected persons are often asymptomatic but still contagious.
84. Recent history reflects that Calhoun also lacks the medical infrastructure necessary to address the spread of infectious disease and treatment of people most vulnerable to illness. During the H1N1 influenza epidemic in 2009, for example, jails and prisons were sites of severe outbreaks. Calhoun and Monroe
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County Jail each experienced mumps outbreaks just last year.38 News reports suggested an ICE detainee spread the mumps outbreak between facilities when the detainee was transferred from Monroe County Jail to Calhoun. Calhoun confirmed at least two cases of the mumps, and news outlets suggested that “several inmates” at both jails were infected.
85. There is no indication that Calhoun is better prepared to address COVID-19, which poses a far greater risk than mumps, nor any suggestion that ICE is implementing procedures in Calhoun to ensure sufficient numbers of qualified staff to treat those who become infected with COVID-19.
86. Having reviewed sworn declarations describing the conditions of Plaintiffs’ confinement, correctional health expert and epidemiologist Dr. Venters has concluded that Calhoun fails to meet even the most basic elements of the CDC’s guidelines for management of COVID-19 risks in correctional settings. Dr. Venters identified the following, non-exclusive list of deficiencies: a lack of basic social distancing (including extremely close sleeping quarters and living areas), failure to provide sanitizing and personal protection equipment, failure to establish standards of use of gloves and masks by security personnel, lack of environmental cleaning in the facility, lack of availability of testing for COVID-19 despite concerning
38 Mumps confirmed in Calhoun County Jail, WoodTV.com (Apr. 21, 2019), available at: https://www.woodtv.com/news/kzoo-and-bc/mumps-confirmed-incalhoun-county-jail/.
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symptoms, and lack of attention to serious history and symptoms of potentially lifethreatening medical problems that raises concerns about detainees’ ability to receive access to appropriate health services.
E. Calhoun Must Depopulate to Mitigate the Risks of COVID-19, Beginning with the Most Vulnerable Detainees 87. Leading public health experts have recommended that the Subclass
Named Plaintiffs, and other high-risk detainees, be released from Calhoun and similar correctional facilities.
88. Dr. Jonathan Louis Golob, an expert in infectious diseases and immunocompromised patients, has declared that social distancing and hygiene “are the only known effective measures for protecting vulnerable communities from COVID-19.” He has further advised that it is reasonable to expect that COVID-19 will “readily spread in detention centers such as prisons and jails[.]” Therefore, he has concluded, vulnerable people in such facilities “are at grave risk of severe illness and death from COVID-19.”
89. Dr. Venters, an epidemiologist and correctional health expert, has enumerated categories of risk factors that increase an individual’s risk of serious complications from COVID-19. The “At-Risk Population” includes individuals with one or more of the following risk factors: age of 50 or above, pregnancy or recent pregnancy (within last 6 weeks), and serious underlying medical condition including: chronic kidney disease (including receiving dialysis); chronic liver
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disease (including cirrhosis and chronic hepatitis); endocrine disorders (including diabetes mellitus); compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS); metabolic disorders (including inherited metabolic disorders and mitochondrial disorders); heart disease (including congenital heart disease, congestive heart failure and coronary artery disease); lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen; neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury); body mass index (BMI) of 40 or greater; hypertension; smoking or history of smoking; and, any other condition identified by the CDC as putting a person at a higher risk.
90. Dr. Venters explains that age 50 or older is an appropriate threshold for several reasons. First, CDC data reflects that the risk of complications, measured by hospitalization rates, increases for those between ages 45-54 and 55-64. Dr. Venters believes this is especially appropriate for ICE’s consideration of those in its custody,
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given that in correctional settings the age of 50 or 55 is often used to identify older patients, because of the extremely high level of physical and behavioral health problems among this cohort of people. In addition, Dr. Venters cites recent data that reveals that the critical risk of smoking for serious illness and death from COVID19 infection, as well as data that reveals the rates of smoking to be highest among detained people over 50. For those reasons, it is Dr. Venters’ expert opinion that ICE should apply the age of 50 and over to identify detainees who have an increased vulnerability to COVID-19 based on their age.
91. Dr. Venters has called for the immediate release of detainees who possess risk factors, to prevent their serious illness and/or death, and cautions that ICE should not wait until those detainees become symptomatic.
92. According to Dr. Venters, ICE should adhere to the following CDCapproved steps to meet the re-entry needs of people leaving ICE custody. First, any individual set for release must clear a COVID-19 screening process. If they do not, facilities should follow the protocol for a suspected COVID-19 case, including by providing a face mask to the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the individual is released before the recommended medical isolation period is complete, ICE should discuss the individual’s release with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care,
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as part of release planning. ICE should also make direct linkages to community resources to ensure proper medial isolation and access to medical care. Finally, before releasing a detainee with COVID-19 symptoms to a community-based facility, such as a homeless shelter, ICE should contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
F. Plaintiffs Are at Grave Risk Under the Current Conditions in Calhoun. 93. All Plaintiffs are at grave risk of contracting COVID-19 as a result of
being detained by ICE at Calhoun, where they are subject to conditions that prevent them from taking basic measures, including social distancing, to protect themselves from this dangerous virus.
94. Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma and Zhang are people who, as a result of their age and/or underlying medical conditions, are at greatest risk of serious illness or death if infected by COVID-19.
95. Qaid Alhalmi is a 58-year-old Yemeni national who first entered the United States on May 29, 1992, as a nonimmigrant visitor, and then on July 27, 1995, also as a nonimmigrant visitor. He remained in the country ever since. Mr. Alhalmi’s final order of removal to Yemen was issued on August 8, 2002, and the Board of Immigration Appeals dismissed his appeal on December 15, 2003. Mr.
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Alhalmi has been in ICE custody since on or around September 17, 2019, when he was detained during one of his standard Order of Supervision appointments.
96. Mr. Alhalmi is 58 years old and
97. Mr. Alhalmi is critically vulnerable to COVID-19 because of his
98. If released, Mr. Alhalmi will live in his home in Dearborn, Michigan, with his wife of 13 years, who is a U.S. citizen. While at home, Mr. Alhalmi would maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions.
99. Tomas Cardona Ramirez is a 38-year-old Guatemalan national, who entered the United States in 2004. He has been detained by ICE in Calhoun since February 2020. On April 24, 2020, Mr. Cardona Ramirez was granted voluntary departure.
100. Mr. Cardona Ramirez
101. Mr. Cardona Ramirez is critically vulnerable to COVID-19 because of
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102. If released, Mr. Cardona Ramirez will live with his significant other and her children in Grand Rapids, Michigan. While at home, Mr. Cardona Ramirez would maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions.
103. Ruby Briselda Escobar is a 31-year-old El Salvadorian national who entered the United States in 2013. She was detained by ICE at Calhoun from November 18, 2018 to April 6, 2020. Ms. Escobar has a final order of removal that was issued in 2013, when she first attempted entry into the United States. Ms. Escobar’s application
104. Ms. Escobar
At Calhoun, Ms. Escobar was denied her regular medications and her symptoms became much worse. She also never received any testing for her health issues during the year and
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a half she was detained at Calhoun, despite reporting her symptoms to medical staff multiple times.
105. Ms. Escobar is critically vulnerable to COVID-19 due to her medical conditions.
106. Ms. Escobar was released voluntarily by ICE under an order of supervision on April 6, 2020, the day after her original petition was filed. See Dkt. 17, Dkt. 25 at 1. She is currently residing with her best friend in Lincoln Park, Michigan, where she is able to maintain a safe distance from others and/or quarantine as necessary. She continues to seek a writ of habeas corpus or permanent injunction to prevent her redetention.
107. Julio Fernando Medina Euceda is a 55-year-old Honduran national who entered the United States in 1991, and became a lawful permanent resident in 2006 after marrying his wife, who is a U.S. citizen. He has been detained by ICE in Calhoun since January 24, 2020. Mr. Medina Euceda requested voluntary departure, which the Detroit Immigration Court denied. On April 13, 2020, Mr. Medina Euceda was ordered removed.
108. Mr. Medina Euceda is critically vulnerable to COVID-19 because of his age.
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109. If released, Mr. Medina Euceda will live with his wife in their apartment in Detroit, Michigan. While at home, Mr. Medina Euceda would maintain a safe distance from others and/or quarantine as necessary.
110. Damary Rodriguez Salabarria is a 46-year-old Cuban national who entered the United States on August 1, 2019, and requested asylum at that time. She was immediately detained in McAllen, Texas and on August 10, 2019, was transferred to Calhoun, where she has remained ever since. Ms. Rodriguez Salabarria’s asylum case was denied, and her appeal to the Board of Immigration Appeals was also denied, approximately two weeks ago. She is filing a petition for review to the Sixth Circuit Court of Appeals.
111. Ms. Rodriguez Salabarria
112. Ms. Rodriguez Salabarria is critically vulnerable to COVID-19 because of her medical conditions.
113. If released, Ms. Rodriguez Salabarria will be picked up by volunteers from the Washtenaw Interfaith Coalition for Immigrant Rights and transported to
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Baytown, Texas, where she can rejoin her husband. In Texas, Ms. Rodriguez Salabarria would maintain a safe distance from others and/or quarantine as necessary. She would also have access to treatment for her medical conditions.
114. Emanuel Rosales Borboa is a 35-year-old Mexican national who first entered the United States in 1995, when he was 10 years old, with a B-2 visa. He has continuously resided in the United States since then. Mr. Rosales Borboa was first detained by ICE in April 2017, after he was unable to produce proof of legal U.S. residency to ICE officers at his place of work. He was released on bond in May 2017. On March 7, 2020, Mr. Rosales Borboa was arrested and charged with carrying a concealed weapon. He appeared before a criminal judge who granted him release on bond of $1,000.00, but ICE placed a detention hold and on March 9, 2020, Mr. Rosales Borboa was transferred to Calhoun. Mr. Rosales Borboa is seeking Cancellation of Removal.
115. About ten years ago, Mr. Rosales Borboa
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116. Mr. Rosales Borboa is critically vulnerable to COVID-19 because of

117. If released, Mr. Rosales Borboa will live with family members at his

home in Allen Park, Michigan, where he has lived for the last five years. While at

home, Mr. Rosales Borboa would maintain a safe distance from others and/or

quarantine as necessary. He would also have access to treatment

118. Amer Toma is a 55-year-old Iraqi national who first entered the United

States about 10 years ago under Refugee status. Mr. Toma was in ICE custody from

September 21, 2019 to April 22, 2020. Mr. Toma was arrested for driving with 5-

45 kilograms of marijuana in his car, for which he received two years’ probation and

no jail time. Mr. Toma was detained at both Monroe County Jail and Calhoun.

119. Mr. Toma is 55 years old,

for

which he has not received treatment.

He has been on SSI disability for seven years.
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120. Mr. Toma is critically vulnerable to COVID-19 because Since his release from Calhoun, Mr. Toma
has been living at his home in Madison Heights, Michigan, where he has been able to practice social distancing and quarantine himself. He wears a mask as much as possible, and constantly washes his hands and uses hand sanitizer.
121. Mr. Toma was released pursuant to this Court’s temporary restraining order, which has since been converted to a preliminary injunction. He continues to seek a writ of habeas corpus or permanent injunction to prevent his redetention.
122. Min Dan Zhang is a 50-year-old Chinese national who entered the United States in 2013. She has been detained by ICE in Calhoun since August 22, 2019. On April 20, 2020, the Detroit Immigration Court denied Ms. Zhang’s request for bond. The Detroit Immigration Court
123. Ms. Zhang is critically vulnerable to COVID-19 because of her age. 124. If released, Ms. Zhang will live with her ten-year-old son and family in Brooklyn, New York. Her family is able to arrange for her travel from Calhoun. While in Brooklyn, Ms. Zhang would maintain a safe distance from others and/or quarantine as necessary.
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125. Plaintiffs Barajas Santoyo, Brito, Castro, Garcia Toledo, Gomez Santiz, Orta Vieyra, and Sosa Carillo are detained at Calhoun. Under the current conditions, they are unable to socially distance or practice other necessary measures to prevent the risk of contracting COVID-19.
126. These Plaintiffs, while not at the greatest risk of serious illness or death if infected by COVID-19 due to their age or underlying medical conditions, are also at high risk under the current conditions at Calhoun.
127. Baldemar Barajas Santoyo is a 47-year-old Mexican national who first entered the United States in December 1991, without inspection. His most recent entry was in May 2000, and he has been in the country ever since. Mr. Barajas Santoyo has been detained by ICE in Calhoun since February 12, 2020. He has no criminal history, and is currently in the process of applying for an immigrant visa.
128. As a result of the conditions of confinement at Calhoun, Mr. Barajas Santoyo is at high risk of contracting COVID-19.
129. If released, Mr. Barajas Santoyo will live with his six children, all of whom are U.S. citizens, at his home in Bangor, Michigan. While at home, Mr. Rosales Borboa would maintain a safe distance from others and/or quarantine as necessary.
130. Sergio Brito is a Mexican national who entered the United States in 2002, without inspection, and has been in the country ever since. He has been
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detained by ICE in Calhoun since December 9, 2019. Mr. Brito is subject to mandatory detention due to a home invasion conviction, which he is currently working to vacate. If successful, Mr. Brito would be qualified to and will apply for cancellation of removal. Currently, he is appealing to the BIA whether his conviction does subject him to mandatory detention and, thus, he is ineligible for cancellation.
131. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
132. If released, Mr. Brito will live with his sister in Grand Rapids, Michigan. While living with his sister, Mr. Brito would maintain a safe distance from others and/or quarantine as necessary.
133. Guo Yan Lin Castro is a 45-year-old Chinese national who entered the United States in January 2013, with advance parole. She has been detained by ICE in Calhoun since October 2019, after she was charged with prostitution and paid bail. Ms. Castro’s immigration case is pending before an immigration judge in Detroit, and her next hearing is scheduled for May 15, 2020.
134. Ms. Castro’s The extent of Ms. Castro’s particular medical
vulnerability is unknown, pending receipt of medical records.
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135. As a result of the conditions of confinement at Calhoun, Ms. Castro is at high risk of contracting COVID-19.
136. If released, Ms. Castro will stay with her boyfriend, who is a permanent resident, at his home in Brooklyn, New York. While at home, Ms. Castro would maintain a safe distance from others and/or quarantine as necessary.
137. Jose Mauricio Garcia Toledo is a Mexican national who entered the United States about 27 years ago, without inspection, and has remained in the country ever since. He has been detained by ICE in Calhoun since February 2020. His petition for alien relative is pending with USCIS. He is currently applying for cancellation and has a hearing scheduled for June 15, 2020.
138. As a result of the conditions of confinement at Calhoun, Mr. Garcia Toledo is at high risk of contracting COVID-19.
139. If released, Mr. Garcia Toledo will live with his wife, a lawful permanent resident, and seven-year-old son, a U.S. citizen, at their home in Wyoming, Michigan. While at home, Mr. Garcia Toledo would maintain a safe distance from others and/or quarantine as necessary.
140. Jose Gomez Santiz is a 23-year-old Mexican national who entered the United States in 2009, without inspection. He has been detained by ICE in Calhoun since February 14, 2020. Before his detention in Calhoun, he had been detained at the Gratiot County Jail since January 2020. Mr. Gomez Santiz has requested he be
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permitted to get married. If so, he would qualify for cancellation. His hearing is scheduled for May 22, 2020.
141. As a result of the conditions of confinement at Calhoun, Mr. Gomez Santiz is at high risk of contracting COVID-19.
142. If released, Mr. Gomez Santiz will stay with his fiancé in Gratiot County, Michigan. While at home, Mr. Gomez Santiz would maintain a safe distance from others and/or quarantine as necessary.
143. Isaac Orta Vieyra is a 32-year-old Mexican national who entered the United States on February 16, 2003, and has been in the country ever since. He has been detained by ICE in Calhoun since January 2020, after he was arrested for a drug charge that was later dismissed. Mr. Orta Vieyra is filing for cancellation of removal.
144. As a result of the conditions of confinement at Calhoun, Mr. Orta Vieyra is at high risk of contracting COVID-19.
145. If released, Mr. Orta Vieyra will live with his wife and children, who are all U.S. citizens, at their home in Shiawassee County, Michigan. While at home, Mr. Orta Vieyra would maintain a safe distance from others and/or quarantine as necessary.
146. Rudy Sosa Carillo is a 23-year-old Guatemalan national who entered the United States in 2013, without inspection. He has been detained by ICE in
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Calhoun since February 2020, when ICE took him into custody as he was driving to work. Mr. Sosa Carillo was denied bond on April 2, 2020. He is contesting his removal, and has a June 24, 2020 hearing in his immigration case.
147. As a result of the conditions of confinement at Calhoun, Mr. Sosa Carillo is at high risk of contracting COVID-19.
148. If released, Mr. Sosa Carillo will live in the house he owns in Grand Rapids, Michigan. While at home, Mr. Sosa Carillo would maintain a safe distance from others and/or quarantine as necessary.
LEGAL BACKGROUND A. The Constitutional Framework for Evaluating Civil Detention.
149. “In our society, liberty is the norm,” and detention is the “carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Incarceration can be used to punish criminal acts, but may be imposed only after extensive procedural protections designed to ensure a person is not unjustly deprived of her liberty. See Santobello v. New York, 404 U.S. 257, 264 (1971) (Douglas, J., concurring).
150. Civil detainees, unlike people convicted of crimes, “may not be punished.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992); see also Kingsley v.
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Hendrickson, 135 S.Ct. 2466, 2475 (2015). Accordingly, the constitutional constraints on civil detention are even higher than in the criminal context: “detention violates that [Due Process] Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification . . . outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. See also Addington v. Texas, 441 U.S. 418, 425 (1979) (“civil commitment for any purpose constitutes a significant deprivation of liberty”); Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003).
151. The Supreme Court has therefore insisted that civil detention be “narrowly focused on a particularly acute problem in which the government interests are overwhelming.” Foucha, 504 U.S. at 80-81 (quoting Salerno, 481 U.S. at 749– 50). “The bar for involuntarily removing someone from society against her will is high—quite understandably and quite legitimately so,” and thus there is a “heavy presumption” against such “a massive curtailment of liberty.” Howell v. Hodge, 710 F.3d 381, 385, 387 (6th Cir. 2013).
152. To ensure that civil detention does not become impermissible punishment, the Supreme Court has carefully limited its use, insisting that civil detention be used only in “special and narrow nonpunitive circumstances,” Zadvydas, 533 U.S. at 690, and that it must “bear[] [a] reasonable relation to the purpose
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for which the individual [was] committed.” Id. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Unless civil detention is closely linked to its purpose, the state’s interests cannot “outweigh[] the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690.
153. It is not just the fact of confinement, but “the nature and duration of commitment [that must] bear some reasonable relation to the purpose for which the individual is committed.” Jackson, 406 U.S. at 738 (emphasis added). See also Foucha, 504 U.S. at 79 (“[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed”); id. at 88 (opinion of O’Connor, J.) (requiring a “necessary connection between the nature and purposes of confinement”); Seling v. Young, 531 U.S. 250, 265 (2001).
154. Not only must the fact and nature of civil detention be “linked to the stated purposes of the commitment,” Hendricks, 521 U.S. at 363, but the fact and nature of detention may not be excessive in relation to the special, non-punitive reason that justifies detention. Salerno, 481 U.S. at 747. See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (ostensibly civil restrictions constitute punishment if they are “excessive in relation to the alternative [nonpunitive] purpose” used to justify them); Schall v. Martin, 467 U.S. 253, 269 (1984) (same); Kingsley, 135 S.Ct. at 2469 (same).
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155. Thus, a civil detainee can establish unconstitutional punishment “by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020).
B. During the COVID-19 Pandemic, Immigration Detention Without Adequate Safeguards, Especially the Ability to Socially Distance, Is Punitive and Hence Unlawful. 156. Immigration detention—like all civil detention—must be supported by
a “sufficiently strong special justification.” Zadvydas, 533 U.S. at 690. The purpose of immigration detention is “effectuating an alien’s removal,” and immigration detention is only permissible if it “bear[s] a reasonable relation” to that purpose. Id. at 690, 697; see also Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (finding that the goal of immigration detention is “to ensure the ability of the government to make a final deportation”). Thus, when considering the lawfulness of immigration detention, courts must weigh the reasonableness of the government’s asserted interest in using detention to help accomplish removal against the individual’s interest in freedom from such confinement. The COVID-19 pandemic affects both parts of that equation.
157. During this pandemic, an individual’s interest in freedom from confinement is at its zenith. Detention is no longer solely a deprivation of liberty, as severe as that is. Detention in the time of COVID-19 is highly likely to result in
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contraction of a dangerous illness, because detention centers do not allow for social distancing. Indeed, detention could well result in a deprivation of life itself.
158. Conversely, during this pandemic, the government’s interest in keeping people detained is greatly weakened. First, the government’s ability to remove people has decreased dramatically given the breakdown in international travel, the closure of international borders, and the pandemic-induced practical obstacles to obtaining the necessary paperwork to process removals. Second, and perhaps even more importantly, the government has a strong public health interest in limiting detention because the congregate nature of those facilities allows for rapid spread of the disease, endangering those detained, those who work in detention facilities, and those in surrounding communities. Given the limited public health resources— including scarce hospital beds, insufficient ventilators, and overtaxed medical staff—the government’s true interest here is in preventing a wildfire spread of the virus in detention facilities.
159. In sum, due to the COVID-19 pandemic, the fact and nature of Plaintiffs’ detention in Calhoun, where they do not have the ability to engage in social distancing and are at grave risk of severe illness or death, is not reasonably related to, and excessive in relation to, the government’s interest in removal. Such detention therefore imposes punishment, in violation of Plaintiffs’ Due Process rights under the Fifth Amendment.
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C. Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody. 160. “[W]hen the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being.” DeShaney v. Winnebago
County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As discussed above,
because Plaintiffs are civil detainees, their detention is governed by the Fifth
Amendment, and may not “amount to punishment of the detainee.” Bell, 441 U.S. at 535, 539.39 See also Banks v. Booth, 1:20-cv-00849-CKK, Dkt. 51 at 10-12
(D.D.C., April 20, 2020) (holding that pretrial detainees held during COVID-19
pandemic did not need to show deliberate indifference, but only that Defendants
knew or should have known that the jail conditions posed an excessive risk to their
health); Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC, 2020 WL
1952656, at *12 (C.D. Cal. Apr. 23, 2020) (“The Government must not be
deliberately indifferent to the potential exposure of civil detainees to a serious,
39 Plaintiffs’ continued detention also violates the Eighth Amendment’s prohibition of cruel and unusual punishment—a much stricter standard than the Fifth Amendment’s ban on any punishment, which applies here. This is because Defendants have ignored “a condition of confinement that is sure or very likely to cause serious illness” by crowding Plaintiffs into living quarters with others who have “infectious maladies . . . even though the possible infection might not affect all of those exposed.” Helling, 509 U.S. at 32-33. See Bell, 441 U.S. at 539; Thakker, No. 1:20-cv-480, at *22 n.15 (ordering immediate release of immigration detainees due to COVID-19 under the Fifth Amendment and, citing Helling, finding that plaintiffs had also met the “more exacting Eighth Amendment standard”).
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communicable disease on the ground that the complaining detainees show no serious current symptoms, or ignore a condition of confinement that is more than very likely to cause a serious illness”).
161. Defendants’ continued detention of Plaintiffs and members of the proposed class under current conditions and population levels puts them at a high risk of exposure to a highly contagious disease resulting in serious illness, severe harm, or death, in violation of their due process rights under the Fifth Amendment.
D. Plaintiffs Held in Post-Order Custody Must Be Released Because Their Removal Is Not Significantly Likely in the Reasonably Foreseeable Future Due to the Impact that the COVID-19 Crisis Has Had on International Travel and Removals. 162. Mr. Alhalmi, who was ordered removed to Yemen, has been detained
since September 2019, approximately eight months. Ms. Rodriguez Salabarria, whose order to be removed to Cuba became final after the BIA denied her appeal, has been detained since August 2019, more than eight months. Mr. Toma, who was ordered removed to Iraq, has been detained since September 2019, more than six months. As a result of the COVID-19 crisis, Mr. Alhalmi, Ms. Escobar, Ms. Rodriguez Salabarria, and Mr. Toma are not significantly likely to be removed in the reasonably foreseeable future, and their detention is therefore barred under Zadvydas v. Davis, 533 U.S. 678 (2001).
163. Mr. Alhalmi, Ms. Escobar, Ms. Rodriguez Salabarria, and Mr. Toma have final orders of removal, and are therefore detained under 8 U.S.C. § 1231, the
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statute governing post-order detention. 8 U.S.C. § 1231(a)(2) authorizes a 90-day period of mandatory post-final-order detention during which time ICE is supposed to effectuate removal, also known as “the removal period,” § 1231(a)(1)(A).
164. Individuals whom the government is unable to remove during the 90day removal period should be released under conditions of supervision. 8 U.S.C. § 1231(a)(3) (“If the alien . . . is not removed within the removal period, the alien, pending removal, shall be subject to supervision.”). These conditions include periodic reporting and other “reasonable written restrictions on the alien’s conduct.” Id.
165. Mr. Alhalmi, Ms. Escobar, and Mr. Toma have been detained far longer than the 90-day removal period.
166. In certain circumstances, the government “may” continue to detain certain individuals “beyond the removal period,” including when individuals have been ordered removed on criminal grounds or where the government deems them to be a risk to the community or unlikely to comply with a removal order. 8 U.S.C. § 1231(a)(6) (emphasis added).
167. ICE continued the detention of Mr. Alhalmi, Ms. Escobar, and Mr. Toma beyond 90 days. Mr. Alhalmi was charged with selling pornography to a 17year-old over ten years ago. He successfully completed a DA diversion program and has not reoffended. Mr. Toma has a conviction for delivery/manufacture of
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marijuana, for which he was sentenced to two years’ probation. There is no hearing process by which individuals can appeal the government’s unilateral determination that they should be detained past the 90-day removal period.
168. In Zadvydas, the Supreme Court held that 8 U.S.C. § 1231(a)(6) authorizes continued detention beyond the removal period only insofar as removal is “reasonably foreseeable.” 533 U.S. at 699. That is because, to satisfy due process, detention must “bear a reasonable relation to the purpose for which the individual [was] committed.” Id. at 690 (citations omitted). Because the principal purpose of the post-final-order detention statute is to effectuate removal, if removal cannot be effectuated, detention bears no reasonable relation to its purpose. Id. at 697. Thus, in order to avoid the serious constitutional problem that would be created if the statute authorized detention in such circumstances, the Supreme Court construed Section 1231(a)(6) as authorizing post-final-order detention only for a “period reasonably necessary to secure removal,” a period that the Court determined to be presumptively six months. Id. at 699-701. After this six-month period, if a detainee provides “good reason” to believe that his or her removal is not significantly likely in the reasonably foreseeable future, “the Government must respond with evidence sufficient to rebut that showing.” Id. at 701. If the government cannot do so, the individual must be released.
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169. Mr. Alhalmi, Ms. Escobar, Ms. Rodriguez Salabarria, and Mr. Toma have been detained longer than six months. The COVID-19 crisis provides good reason to believe their removal is not significantly likely in the reasonably foreseeable future. Therefore, they must be released unless Defendants provide evidence that rebuts Plaintiffs’ showing that removal is unlikely in the reasonably foreseeable future.
170. Even under normal circumstances before the COVID-19 pandemic, securing the necessary documents for deportees and coordinating their travel could be a time-consuming, complicated, and costly process.
171. That process has now ground to a halt. The COVID-19 crisis has resulted in an unprecedented shutdown of international travel, a closure of international borders, the shuttering of embassy and consular services that are an integral part of removal processing, and a drastic curtailment of immigration case processing.
172. International travel has come to a virtual standstill. Sixty-four global airlines have completely suspended operations, and U.S. airlines have greatly reduced operations.40 Many airlines are now operating cargo-only flights and U.S.

40 Thomas Pallini, 64 Global Airlines Have Completely Stopped Flying Scheduled

Flights Due to Travel Bans, Airspace Closures, and Low Demand for Travel – See

the Full List, Bus. Insider

(Apr. 1, 2020),

https://www.businessinsider.com/coronavirus-global-airlines-stopping-flights-

suspending-operations-2020-3.

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airports have closed terminals, gates and runways.41 Delta will cut its international flights by 80%.42 American Airlines plans to cut its international flights by 90% through April and May.43 It is unclear when regular commercial air travel will resume, and, even when it does, it will likely take a great deal of time before regular routes are reestablished to many countries, meaning that it is likely to remain extremely difficult to effectuate removals.
173. While ICE uses charter flights to effectuate removals to some countries, for many countries ICE relies on commercial airlines. Removals are not significantly likely in the reasonably foreseeable future to countries where ICE cannot currently operate charter flights and where there is no regular commercial air travel.

41 James Asquith, Commercial Airlines Are Now Operating Cargo-Only Flights,

Forbes

(Mar.

28,

2020),

https://www.forbes.com/sites/jamesasquith/2020/03/28/commercial-airlines-are-

now-operating-cargo-only-flights/#17b4385c6f0e; Nicquel Terry Ellis, Chicago,

Los Angeles and more airports shutter gates, runways as coronavirus halts travel,

USA

Today

(Apr.

3,

2020),

https://www.usatoday.com/story/travel/2020/04/03/u-s-airports-reduce-

operations-travel-declines-due-coronavirus/2939126001/

42 Kelly Yamanouchi, Delta Says it Still Flies to All Points in its Domestic Network,

Atlanta

Journal-Constitution

(Apr.

3,

2020),

https://www.ajc.com/blog/airport/delta-says-still-flies-all-airports-its-domestic-

network/Rym2MyGFFHdanXuKP7VPpK/.

43 Keith Griffin, American Airlines Cuts International Flights by 90% Through May

– but Vows NOT to Halt Domestic Service During the Coronavirus Crisis, Daily

Mail

(Apr. 3, 2020), https://www.dailymail.co.uk/news/article-

8186105/American-Airlines-cuts-international-flights-90-May.html.

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174. In addition, many countries have closed their borders as a result of COVID-19. Both commercial and charter flights are affected. It is unclear how long it will be until countries reopen their borders, or, when they do, whether countries will agree to accept people deported from the United States, particularly those coming from Michigan, one of the areas in the United States hardest hit by COVID19. It is also unclear what requirements countries will impose in order to accept individuals coming from abroad. For example, even if a country opens up its borders and allows entry conditioned on a period of quarantine, it is unclear that deportees, who are unlikely to have the resources to isolate in a hotel for several weeks, will be admitted.
175. The shuttering of consular and embassy services makes removals more difficult still. Even absent the COVID-19 crisis, individuals set to be deported must obtain travel documents, usually a passport. It was already quite difficult for ICE to obtain passports or other travel documents for nationals of certain countries. Given the global scale of the COVID-19 crisis, foreign governments are fully occupied with protecting their countries from the pandemic. As in the United States, government employees in other countries responsible for processing passport and document requests are likely to be working from home, assuming that they have internet and computers, which will often not be the case. Similarly, foreign consular and embassy staff in the United States face challenging working conditions, if they
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are working at all. As a result, it is unlikely that ICE will be able to timely obtain passports or travel documents for plaintiffs who do not already have them.
176. The slowing and shutdown of consular and embassy services will also affect removals to countries where transit visas through third countries are necessary in order to remove a person because there are no direct flights to the country of deportation. Because many deportees are escorted by ICE officers on such flights, in order to travel through the transit country or countries, ICE needs to procure transit visas not just for the deportee, but also for the ICE escorts.
177. Likewise, immigration case processing in the United States has been severely curtailed as a result of the pandemic. As of 2020, there were over 1.1 million cases pending in the immigration court system, and the average wait for a disposition in Michigan is almost two years.44 While the Detroit Immigration Court remains open for detainee hearings, detainees are being encouraged to waive their right to in-person appearances in favor of telephonic appearances, and to work with the Department of Justice to take certain facts out of controversy.45 Thus, those
44 See Immigration Court Backlog Tool, TRAC Reports, Inc., https://trac.syr.edu/phptools/immigration/court_backlog/.
45 Mark Jebson, U.S. Immigration Judge, Standing order: Telephonic Appearance due to COVID-19 in detained cases before Judge Mark Jebson in the Detroit Immigration Court (Mar. 26, 2020). Regarding the right to an in-person hearing generally, Immigration Court Practice Manual, Department of Justice, Chapter 4 (2008) (“[E]videntiary hearings on the merits may only be conducted by telephone conference if the respondent consents after being notified of the right to proceed in person or through video conference.”).
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detainees who wish to press their right to fair procedures will see their cases delayed in a system that is heavily backlogged under the best of circumstances.
178. As the pandemic continues to spread, it is unclear how long it will take for immigration courts or the Board of Immigration Appeals to hear cases from individuals who are seeking further immigration relief or who are detained due to a government appeal.
179. Defendants seek to deport Mr. Alhalmi to Yemen. Even before the COVID-19 crisis, it was unlikely that the Government would deport Mr. Alhalmi to Yemen, a war-torn country facing a humanitarian crisis. In the past four years, over 3 million people have been displaced and over 15,000 people were killed.46 Much of the country, including the capital city, Sana’a, is currently controlled by the Houthis, an armed militia group that has been accused of numerous human rights violations, including recruiting and using child soldiers.47
180. The violence has not stopped either since the COVID-19 outbreak; since January 2020, civilian casualties have risen every month.48 In a statement
46 The United Nations identified Yemen as the worst humanitarian crisis in the world in 2019. Humanitarian crisis in Yemen remains the worst in the world, warns UN, UN News (Feb. 14, 2019), https://news.un.org/en/story/2019/02/1032811.
47 Q & A on The Conflict in Yemen and International Law, Human Rights Watch (April 6, 2015), https://www.hrw.org/news/2015/04/06/q-conflict-yemen-andinternational-law.
48 Yemen can’t survive war on two fronts, top UN envoy tells Security Council, as coronavirus outbreak looms, UN News (Apr. 16, 2020), https://news.un.org/en/story/2020/04/1061942.
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released by Secretary of State, Michael Pompeo, he said that the U.S. Government is “alarmed by renewed violence” in Yemen even after de-escalation efforts were implemented.49 Within the last month, the Saudi-led coalition has continued to carry out air strikes, killing over 30 people on March 30, 2020 alone.50
181. Since the COVID-19 outbreak, the conditions in Yemen have only grown more dire. Due to the conflict, there are few medical resources available in Yemen. Over half of the hospitals and clinics have closed or been destroyed. Around 80% of the population depends on foreign aid, which has been cut due to funding crises and accusations that aid was being diverted by Houthi authorities. There are also severe water and food shortages throughout the country and a lack of sanitation that led to an acute cholera outbreak.51
182. The conflict poses additional logistical problems, including that the U.S. Embassy in Sana’a suspended its operations in 2015, and that the U.S. Federal Aviation Administration prohibits flying in certain regions due to terrorist and militant activity. Additionally, the U.S. State Department travel advisory warns that
49 Press Release, Dep’t of State, Escalation of Violence in Yemen (Jan. 28, 2020). 50 Aziz El Aziz El Yaakoubi and Lisa Barrington, Air strikes hit Houthi-held Yemeni
capital Sanaa: witnesses, Reuters (March 30, 2020), https://www.reuters.com/article/us-yemen-security/air-strikes-hit-houthi-heldyemeni-capital-sanaa-witnesses-idUSKBN21H1GY 51 Bethan McKernan, Health workers' worst fears confirmed as Covid-19 reaches war-torn Yemen, The Guardian (Apr. 10, 2020), https://www.theguardian.com/world/2020/apr/10/yemen-confirms-firstcoronavirus-case-war-torn-country
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there is a high-risk of kidnapping, especially of dual Yemeni-American citizens or individuals coming from the west, and attacks on public sites and transportation hubs.52 The shutdown of international air travel has made it extremely difficult for ICE to remove Mr. Alhalmi to Yemen.
183. Given these facts, Mr. Alhalmi has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future. Therefore, he must be released unless Defendants provide evidence that rebuts Plaintiffs’ showing that removal is unlikely in the reasonably foreseeable future.
184. Defendants seek to deport Petitioner Ruby Briselda Escobar to El Salvador. El Salvador has banned entry to all foreigners, excluding accredited diplomats and legal residents, and those allowed to enter are subject to a 30-day quarantine.53 El Salvador also shut down its airport on March 16, 2020 to all commercial flights, and it is unclear when the airport will reopen.
185. Ms. Escobar’s immigration attorney is not certain whether Ms. Escobar has a passport or other immigration documents that would permit her entry into El
52 U.S. Dep't of State, Yemen Travel Advisory (Nov. 26, 2019), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/yementravel-advisory.html#ExternalPopup.
53 See Coronavirus: Travel Restrictions, border shutdowns by country, AL JAZEERA (Apr. 4, 2020), https://www.aljazeera.com/news/2020/03/coronavirus-travelrestrictions-border-shutdowns-country-200318091505922.html; U.S. Embassy in El Salvador, Current Information for U.S. Citizens in El Salvador.
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Salvador, or whether those still must be obtained, which would be very difficult under present circumstances.
186. Given these facts, Ms. Escobar has provided good reason to believe that her removal is not significantly likely in the reasonably foreseeable future. She must therefore be released unless Defendants can rebut that showing.
187. Defendants seek to deport Ms. Rodriguez Salabarria to Cuba. Before the COVID-19 crisis, deportations to Cuba were rare. Before 2017, the Special Parole Policy (also known as the “dry foot, wet foot” policy) only permitted the repatriation of individuals that were intercepted at sea. In 2017, the U.S. and Cuba entered into an agreement that permitted deportations to Cuba. The Cuban government now has discretion to decide, on a “case-by-case basis” whether to accept deportations.54 If the Cuban government does not accept the individual within 90 days, the individual can request asylum under the Cuban Adjustment Act. In the past three years, Cuba has not accepted all deportations, especially of individuals who are elderly, ill or whom the government views as a tax burden.55
54 See U.S. Department of Homeland Security, Fact Sheet (Jan. 12, 2017), https://www.dhs.gov/sites/default/files/publications/DHS%20Fact%20Sheet%20 FINAL.pdf; U.S. DEP’T OF HOMELAND SEC., Joint Statement (Jan. 12, 2017), https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FIN AL%20-%20US%20alt.pdf
55 See Monique O. Madan, Cuban deportations have more than doubled in the past year, new data shows, Miami Herald (Dec. 11, 2019), https://www.miamiherald.com/news/local/immigration/article238280593.html; Maria Alesia Sosa, More than 37,000 Cubans face deportation, but they don't
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Out of the more than 39,000 Cubans with deportation orders, only about 1,300, or around 3%, have been deported.56
188. The COVID-19 crisis only further complicates deportations to Cuba. In addition to the challenges of getting the Cuban government to decide to admit deportees during the crisis, the borders are closed to all international travel. On March 20, 2020, Cuba closed its borders to non-Cuban citizens, and on April 2, 2020, the Cuban government suspended all international flights. The U.S. Embassy in Cuba released a statement that there are no additional repatriation charter flights for U.S. citizens and told individuals that did not get a seat on a prior charter flights to plan to “remain in Cuba until the airport re-opens and airlines can return.”57 Given these facts, Ms. Rodriguez Salabarria has provided good reason to believe that her removal is not significantly likely in the reasonably foreseeable future. She must therefore be released unless Respondents can rebut the showing.
189. Defendants seek to deport Mr. Toma to Iraq. On February 25, 2020, Mr. Toma

seem too worried, Miami Herald (Dec. 29, 2017),

https://www.univision.com/local/miami-wltv/more-than-37-000-cubans-face-

deportation-but-they-dont-seem-too-worried

56 Associated Press, More Cubans are being deported under the Trump

administration,

NBC

News

(Oct.

11,

2019),

https://www.nbcnews.com/news/latino/more-cubans-are-being-deported-under-

trump-administration-n1065041

57 U.S. Embassy in Cuba, Health Alert – U.S. Embassy, Havana, Cuba (Apr. 22,

2020), https://cu.usembassy.gov/covid-19-information/

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However, the government appealed, and kept him detained during the appeal. It is unclear how long it will take for the government’s appeal to be decided given the impact of the COVID-19 crisis on the operations of the Board of Immigration Appeals. Absent relief from this Court requiring Mr. Toma’s release, which was preliminarily entered but has not been permanently granted, Defendants intend to keep Mr. Toma detained for the duration of the government’s appeal of his immigration case.
190. Even before the COVID-19 crisis, this Court found, based on extensive evidence obtained in class action litigation about the difficulty of repatriating nationals of Iraq, that there is no significant likelihood that Iraqi nationals will be removed to Iraq in the reasonably foreseeable future. See Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020). Although Mr. Toma is not a class member in Hamama due to the date of his removal order, the Hamama court’s factual findings about the obstacles to removals to Iraq are directly relevant here.
191. Because of the COVID-19 crisis, the obstacles to Mr. Toma’s removal are even greater than at the time of the Hamama decision. Iraq will not accept repatriations or issue travel documents without first conducting an in-person consular interview. Mr. Toma has not had a consular interview. Given the COVID-
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19 crisis, it is unclear whether or when Iraqi consular officials will conduct any further consular interviews.
192. Iraq has suspended all flights to and from Iraq, and has also banned travel between Iraqi provinces.58 The WHO reports that, as of April 1, 2020 there were 697 total cases of COVID-19 in Iraq, and that it expects the reported numbers to “spike in the coming two weeks.”59
193. Given these facts, Mr. Toma has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future. He must therefore be released unless Respondents can rebut the showing.
E. ICE Has the Authority to Release Detained People in Its Custody 194. It is well within ICE’s authority to comply with constitutional
requirements by releasing people who are vulnerable to severe illness or death if they contract COVID-19. See, e.g., 8 C.F.R. § 212.5(b)(1). ICE not only has the authority to exercise its discretion to release individuals from custody, but has routinely done so, particularly where individuals are medically frail or likely to suffer medical complications if they remain detained.
58 COVID-19 Information, U.S. Embassy & Consulates in Iraq (Apr. 1, 2020), https://iq.usembassy.gov/covid-19-information/.
59 The Fight to Contain COVID-19 in Iraq, World Health Organization, http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid-19-iniraq.html.
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195. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating against detention.
196. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A governmentcontracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings.60
197. ICE’s exercise of discretion applies regardless of the statutory basis for a noncitizen’s detention.
198. Here, the Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that ICE release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has a longstanding practice of releasing immigrants
60 U.S. Gov’t Accountability Off., GAO-15-26, Alternative to Detention: Improved Data and Collection and Analyses Needed to Better Assess Program Effectiveness, at 30 (2014).
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on medical grounds indicates that the remedy Plaintiffs request is neither unprecedented nor unmanageable for the agency.
F. This Court Has the Authority to Order Release To Ensure the Health and Safety of Plaintiffs, and Release is the Appropriate and Necessary Relief. 199. The release of a sufficient number of Calhoun detainees to permit social
distancing and hygiene measures for those who remain in detention is the only means to ensure compliance with the Constitution’s prohibition against punitive or unreasonable civil detention.
200. Where the government fails to meet its obligations to provide safe conditions for those in its custody, courts have a responsibility to remedy the resulting constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Id.
201. Courts have regularly exercised this authority to remedy constitutional violations caused by overcrowding. “The scope of a district court’s equitable powers” in this regard “is broad, for breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (citation omitted). Thus, even where “[t]he inquiry involves uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels,” federal courts
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“have substantial flexibility [in] making these judgments” and crafting an appropriate remedy. Plata, 563 U.S. at 538.
202. Federal courts have repeatedly ordered the release of detained persons when necessary to remedy unconstitutional conditions caused by overcrowding. See, e.g., Plata, 563 U.S. at 541–45; Duran v. Elrod, 713 F.2d 292, 297–98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224–25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions, and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (citation omitted) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”); see also Unknown Parties v. Nielsen, CV-15-00250-TUC-DCB, 2020 WL 813774, at *1 (D. Ariz. Feb. 19, 2020) (ordering that DHS release from custody detainees to whom it did not provide a bed, shower, nutritious food, and screening by a medical professional within 48 hours of booking).
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203. When conditions of confinement in an immigration detention facility lead to uniformly unsafe conditions that rise to the level of a constitutional violation, levels of detention must be reduced unless and until conditions can be brought in line with constitutional standards. As the constitutional principles and public health requirements mandate, releasing detainees from Calhoun is the only viable mechanism to ensure their safety from the threat to their health that COVID-19 poses.
204. Moreover, for those with medical vulnerabilities, such as Plaintiffs Alhalmi, Cardona Ramirez, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma and Zhang, and the subclass they seek to represent, release is the only relief capable of remedying the constitutional violation. See Op. & Order 39–40, Dkt. 22. Because of the underlying health conditions of these Plaintiffs and the subclass, which make them especially vulnerable to infection from COVID-19, the condition of their confinement is not “reasonably related to a legitimate governmental objective”; instead it is “arbitrary or purposeless[.]” See Bell, 441 U.S. at 539. See also J.H. v. Williamson Cty., Tennessee, 951 F.3d 709, 717 (6th Cir. 2020) (applying Bell test to pre-trial detainee’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 571–72 (6th Cir. 1983) (same).
205. To vindicate detainees’ due process rights in the face of the COVID-19 pandemic, federal and state courts across the country have ordered the release of
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detained individuals, vulnerable and otherwise. See Hernandez Roman v. Wolf, No. EDCV 20-00768-TJH (PVCx), 2020 WL 1952656, at *3 (C.D. Cal. Apr. 23, 2020); Thakker v. Doll, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020) (ordering release of 13 detainees in Pennsylvania due to threat of COVID-19); see also supra ¶¶ 60–61.
206. Additionally, social distancing and sanitation measures compliant with public health requirements must be fully implemented to protect any individuals that remain in detention. Defendants’ actions make such protective measures exceedingly difficult, if not impossible, in the environment of an immigration detention center, where detainees share toilets, sinks, and showers, eat in communal spaces, and are in close contact with the many other detainees and officers around them.
CLASS ACTION ALLEGATIONS 207. This case is ideally suited to class treatment. Unsurprisingly, given the grave danger that COVID-19 poses to people in detention, multiple individual actions have been filed in this district. Unrepresented individuals, however, continue to languish in these facilities, fearing for their lives but lacking the wherewithal to sue ICE for their release. Moreover, due the pandemic and the attendant restrictions within detention facilities including Calhoun, it is extremely difficult for detained people to communicate with the outside world, making legal representation very challenging.
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208. The resource-intensive process of litigating multiple individual cases is not ideally suited to the urgent situation at hand, where due process requires swift adjudication. Consolidating discovery and decision-making about the Calhoun facility, which houses more ICE detainees that the other three Michigan facilities put together, is an efficient way to resolve the legal claims of the approximately 130 ICE detainees held there.
209. Accordingly, Plaintiffs bring this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals.
210. Plaintiffs Alhalmi, Barajas Santoyo, Brito, Cardona Ramirez, Castro Garcia Toledo, Gomez Santiz, Medina Euceda, Orta Vieryra, Rodriguez Salabarria, Rosales Borboa, Sosa Carillo, Toma, and Zhang seek to represent a class of all noncitizens who are detained in ICE custody at Calhoun. The class seeks declaratory relief on Count I.
211. Plaintiffs Alhalmi, Cardona Ramirez, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang seek to represent a subclass of medically vulnerable individuals. The subclass seeks habeas and declaratory relief on Count II. The proposed subclass is defined as:
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All noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.61
212. These risk factors have been identified by the CDC and experts
including Dr. Venters, Dr. Golob, and Dr. Robert Greifinger based on emerging data
and studies.
213. In accord with the Sixth Circuit’s ruling in Hamama, the class and
subclass do not seek class-wide injunctive relief. See Hamama v. Adducci, 912 F.3d
869, 880 (6th Cir. 2018) (Hamama I); Hamama v. Adducci, 946 F.3d 875, 876 (6th
Cir. 2020) (Hamama II). Plaintiffs seek class-wide declaratory and habeas relief, to
which they are entitled. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (Alito, J.)
61 These risk factors are: age of 50 or above, pregnancy or recent pregnancy (within last 6 weeks), and serious underlying medical condition including: chronic kidney disease (including receiving dialysis); chronic liver disease (including cirrhosis and chronic hepatitis); endocrine disorders (including diabetes mellitus); compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS); metabolic disorders (including inherited metabolic disorders and mitochondrial disorders); heart disease (including congenital heart disease, congestive heart failure and coronary artery disease); lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen; neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury); body mass index (BMI) of 40 or greater; hypertension; smoking or history of smoking; and, any other condition identified by the CDC as putting a person at a higher risk.
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(plurality op.) (whether the district court had jurisdiction to enter a class-wide
injunction “is irrelevant because the District Court had jurisdiction to entertain the
plaintiffs’ request for declaratory relief”);62 Hamama I, 912 F.3d at 879 (citing
Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (Thomas, J., concurring in part
and concurring in judgment)) (“there is nothing barring a class from seeking a
traditional writ of habeas corpus (which is distinct from injunctive relief[)]”).
214. The proposed class and subclass satisfy the requirements of Federal
Rule of Civil Procedure 23(a)(1) because they are so numerous that joinder of all
members is impracticable. As of April 17, 2020, there were approximately 130
people detained by ICE at Calhoun. Upon information and belief, a significant
percentage of the class is medically vulnerable as that term is defined for purposes
of the subclass definition.
62 See also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011) (“[V]iewing [§ 1252(f)(1)] in context and then taking into consideration the heading of the provision [‘limits on injunctive relief’], it is apparent that the jurisdictional limitations in § 1252(f)(1) do not encompass declaratory relief.”); Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) (“It is simply not the case that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class.”); Caliste v. Cantrell, 937 F.3d 525, 532 (5th Cir. 2019) (ordering class-wide declaratory relief despite statutory bar on injunctive relief); Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *7 (D. Mass. Oct. 23, 2018) (holding that 8 U.S.C. § 1252(f)(1) does not bar classwide declaratory relief; the section heading is “Limit on injunctive relief” and a neighboring section specifically precludes both declaratory and injunctive relief, which § 1252(f)(1) does not); Vazquez Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950, at *9 (S.D.N.Y. Sept. 30, 2019); O.A. v. Trump, 404 F. Supp. 3d 109, 159 (D.D.C. 2019).
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215. Joinder is also impracticable because class members are detained and largely unrepresented. Due to the pandemic, their ability to communicate with the outside world, including potential counsel, is limited. Joinder is also impracticable because many in the proposed class and subclass are pro se, indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system.
216. The proposed class and subclass meet the commonality requirements of Federal Rule of Civil Procedure 23(a)(2) because there are common questions of law and fact affecting members of the proposed class and subclass. Common questions of law for the class include whether Defendants must modify the conditions of confinement—or, failing that, release a critical mass of detainees— such that social distancing will be possible and all those held in the facility will not face a constitutionally violative substantial risk of serious harm. Common questions of law for the subclass include whether the detention at Calhoun for individuals at higher risk of suffering severe illness or death violates their due process rights. Common questions of fact include how social distancing can be accomplished in Calhoun, given facility design, what measures are being taken to protect detainees from COVID-19 and whether those measures are sufficient, and what treatment is available at Calhoun to detainees who contract COVID-19.
217. The proposed class meets the typicality requirements of Federal Rule of Civil Procedure 23(a)(3) because Plaintiffs’ claims are typical of the claims of the
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class, and the claims of Plaintiffs Alhalmi, Cardona Ramirez, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma and Zhang are typical of the claims of the subclass. Each named putative class and subclass representative is being harmed or threatened with harm by the same course of conduct as the rest of the class, namely ICE’s decision to continue to detain them in a setting that makes social distancing impossible. And each seeks similar relief as the rest of the class and subclass.
218. The proposed class and subclass meet the adequacy requirements of Federal Rule of Civil Procedure 23(a)(4). Named Plaintiffs have the requisite personal interest in the outcome of this action and have no interests adverse to the interests of the proposed class and subclass.
219. Additionally, the proposed class is represented by pro bono counsel from the American Civil Liberties Union Fund of Michigan, the American Civil Liberties Union Foundation’s Immigrant Rights Project and National Prison Project, and Paul, Weiss, Rifkind, Wharton & Garrison LLP. Plaintiffs’ counsel have extensive experience litigating class action lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of detained immigrants.
220. The members of the class and subclass are readily ascertainable through Defendants’ records.
221. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants have acted and are acting on grounds generally applicable to
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the class by detaining class members and subclass members without social distancing in the face of the COVID-19 pandemic. Thus, final declaratory and/or habeas relief is appropriate for the class and subclass as a whole.
CLAIMS FOR RELIEF COUNT ONE
Violation of Fifth Amendment Right to Substantive Due Process: Impermissible Punishment of Civil Detainees;
Denial of Reasonable Safety under Current Conditions (All Named Plaintiffs Seeking Declaratory and Injunctive Relief)
(Class Seeking Declaratory Relief)
222. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein.
223. The Fifth Amendment of the U.S. Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to confinement, the fact, nature, or conditions of which amount to punishment or which creates an unreasonable risk to detainees’ safety and health.
224. Defendants are subjecting Plaintiffs and members of the putative class to punishment and an unreasonable heightened risk of contracting COVID-19, for which there is no vaccine, reliable treatment, or cure, for no legitimate reason or justification. Defendants’ practices, including but not limited to maintaining population levels too high for social distancing to be possible, subject Plaintiffs and
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members of the putative class to an unreasonable risk of serious harm, including severe illness and death, in violation of their due process rights.
225. Defendants are acting with deliberate indifference towards Plaintiffs and proposed class members by failing to safeguard their health and safety adequately.
226. Defendants are exposing Plaintiffs and proposed class members to a substantial—indeed grave—risk of serious harm, including death. Defendants know of and are disregarding the substantial risk to Plaintiffs and proposed class members’ health or safety.
227. Thus, Defendants’ continued detention of Plaintiffs and the proposed class members under the current conditions violates their due process rights.
COUNT TWO Violation of Fifth Amendment Right to Substantive Due Process:
Impermissible Punishment and Inability to Ensure Reasonable Safety For the Medically Vulnerable (Named Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang, Seeking Habeas,
Declaratory, and Injunctive Relief) (Subclass Seeking Habeas and Declaratory Relief) 228. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein.
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229. Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and the subclass present particular vulnerabilities that place them at a heightened risk of serious illness and death if they are infected with COVID-19.
230. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to confinement, the fact, nature or conditions of which amount to punishment or which creates an unreasonable risk to detainees’ safety and health.
231. Defendants are subjecting Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and the subclass to punishment and unreasonable heightened risk of contracting COVID-19, for which there is no vaccine, reliable treatment, or cure, for no legitimate reason or justification.
232. Defendants’ continued detention of Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and members of the subclass presents an unreasonable risk of serious harm, including severe illness and death, in violation of their due process rights.
233. Defendants’ are acting with deliberate indifference to Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales
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Borboa, Toma, and Zhang and members of the subclass by continuing to detain and expose them to a substantial risk of serious harm, including death, despite Defendants’ knowledge of the substantial risk to Plaintiffs and proposed class members’ health or safety.
234. Given the substantial risk of serious illness or death from COVID-19, there are no conditions of confinement that would permit the safe detention of Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and the subclass.
235. The Fifth Amendment thus requires release of Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and the subclass.
COUNT THREE Defendants’ Detention of Plaintiffs Where Removal Is Not
Significantly Likely in the Foreseeable Future Violates 8 U.S.C. § 1231(a)(6)
(Plaintiffs Alhalmi, Escobar, Salabarria, and Toma) 236. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein. 237. Due process requires that immigration detention bear a reasonable relation to its purpose. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); RosalesGarcia v. Holland, 322 F.3d 386, 411 (6th Cir. 2003). The principal purpose of the
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statute that authorizes post-final-order detention, 8 U.S.C. § 1231, is to effectuate removal. Where removal cannot be effectuated, detention is not reasonably related to its purpose, would violate due process, and is not statutorily authorized.
238. The removal of Plaintiffs Alhalmi, Escobar, Salabarria and Toma is not significantly likely in the reasonably foreseeable future. Plaintiffs’ detention is therefore not authorized by statute and they are entitled to immediate release under orders of supervision.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: a. Certify this Petition/Complaint as a Class Action; appoint the Named Plaintiffs as class representatives and the Subclass Named Plaintiffs Alhalmi, Cardona Ramirez, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang as representatives of the subclass; and appoint the undersigned counsel as class counsel; b. Order Respondents not to transfer Petitioners to another detention facility without this Court’s permission while this action is pending; c. Declare that conditions of confinement at the Calhoun County Correctional Center for all Named Plaintiffs and class members are currently unconstitutional under the Fifth Amendment because they do not permit social distancing and other measures necessary to minimize the risk of infection with
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COVID-19; declare that the steps set out in the U.S. Immigration and Customs Enforcement and Removal Operations COVID-19 Pandemic Response Requirements, even if implemented at the Calhoun County Correctional Center, are inadequate to reduce the risk that COVID-19 poses to Plaintiffs’ health and safety to a level that is constitutional under the Fifth Amendment; and declare, based on expert evidence, what steps must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights, including a determination of the population level that can be detained consistent with social distancing and other COVID-19 prevention requirements; d. Issue a Writ of Habeas Corpus and injunctive relief for all Named Plaintiffs ordering their release unless the Defendants have taken the steps that the Court has declared must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights and has reduced the population to the level that the Court has found can be detained consistent with social distancing and other COVID-19 prevention requirements. e. Declare that Defendants’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including older individuals and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, including Alhalmi, Cardona Ramirez, Escobar,
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Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and members of the subclass, violates the Due Process Clause; f. Issue a Writ of Habeas Corpus for Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang and the subclass on the ground that their continued detention violates the Due Process Clause; order their immediate release with appropriate precautionary public health measures; and order that they may not be redetained until the threat of the COVID-19 is abated or until a vaccine is available and Defendants obtain sufficient vaccine supplies to vaccinate its population, whichever occurs first; g. Issue injunctive relief ordering Defendants to immediately release Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang with appropriate precautionary public health measures on the ground that their continued detention violates the Due Process Clause, and order that they may not be redetained until the threat of the COVID-19 is abated or until a vaccine is available and Defendants obtain sufficient vaccine supplies to vaccinate its population, whichever occurs first; h. Declare that for persons ordered removed to countries where removals are not currently occurring and who are held in post-order detention under 8 U.S.C. § 1231, including Plaintiffs Alhalmi, Escobar, Sabarria, and Toma, there is
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good reason to believe that, due to the COVID-19 crisis, there is no significant likelihood of their removal in the reasonably foreseeable future, and that such persons, including Plaintiffs Alhalmi, Escobar, Salabarria, and Toma, must be released with appropriate precautionary public health measures unless the government can rebut that showing; i. Find that Defendants have failed to rebut the showing of Plaintiffs Alhalmi, Escobar, Salabarria, and Toma that their removal is not significantly likely in the reasonably foreseeable future; order the government immediately to release Plaintiffs Alhalmi and Salabarria from detention under an order of supervision and with appropriate precautionary public health measures; and enjoin Defendants from redetaining Plaintiffs Alhalmi, Escobar, Salabarria, or Toma unless or until Defendants can establish to the Court’s satisfaction that their removal is significantly likely in the reasonably foreseeable future. j. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and k. Grant any other and further relief that this Court may deem fit and proper.
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Dated: April 26, 2020
Respectfully submitted,
_/_s/_M__i_ri_a_m__J_. _A_u_k_e_r_m_a_n______ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* American Civil Liberties Union
Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo American Civil Liberties Union
Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

_/_s_/ _Je_a_n_n_i_e_S_._R__h_ee__________ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com

Jonathan M. Silberstein-Loeb Katharine W. Gadsden* 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming

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CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on April 26, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted,
/s/ Jeannie S. Rhee_______

 
 CCaassee55:2:200-c-cvv-1-100882299-J-JEELL-A-APPPP EECCFFNNoo. .4747-4 fifleiledd0054/1/256/2/200 PPaaggeeIDID.2.1203706 PPaaggee11oof f7777
DECLARATION OF HOMER VENTERS
I, Homer Venters, hereby declare the following:
Background
1. I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My clinical training includes residency training in internal medicine at Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before U.S. Congress regarding mortality inside ICE detention facilities.
2. After my fellowship training, I became the Deputy Medical Director of the NYC Jail Correctional Health Service. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care. I subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry and morbidity and mortality reviews as well as all training and oversight of physicians, nursing and pharmacy staff. In these roles, I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices including use of force and restraints. During this time I managed multiple communicable disease outbreaks including H1N1 in 2009, which impacts almost 1/3 of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks.
3. In March 2017, I left Correctional Health Services of NYC to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
4. In December 2018, I became the Senior Health and Justice Fellow for Community Oriented Correctional Health Services (COCHS), a nonprofit organization that promotes evidencebased improvements to correctional practices across the U.S. In January 2020, I became the president of COCHS. I also work as a medical expert in cases involving correctional health and I have a book on the health risks of jail (Life and Death in Rikers Island) that was published in early 2019 by Johns Hopkins University Press.

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5. A copy of my curriculum vitae is attached to this report which includes my publications, a listing of cases in which I have been involved and a statement of my compensation.
6. In the previous four years, I have testified as an expert at trial or by deposition in the following cases:
a. Benjamin v. Horn, No. 75 Civ. 3073 (HB) (S.D.N.Y.) (2015) as expert for defendants;
b. Rodgers v. Martin, No. 2:16-cv-00216 (U.S.D.C. N.D. Tx.) (Oct. 19, 2017) as expert for plaintiffs;
c. Fikes v. Abernathy, No. 2017 7:16-cv-00843-LSC (N.D. Ala.) (Oct. 30, 2017) as expert for plaintiffs;
d. Fernandez v. City of New York, No. 17-CV-02431 (GHW)(SN) (S.D.N.Y.) (Apr. 10, 2018) as defendant in role as City Employee;
e. Charleston v. Corizon Health Inc., No. 17-3039 (E.D. Pa.) (Apr. 20, 2018) as expert for plaintiffs;
f. Gambler v. Santa Fe County, No. 1:17-cv-00617 (WJ/KK) (Jul. 23, 2018) as expert for plaintiffs;
g. Hammonds v. Dekalb County AL, No. 4:16-cv-01558-KOB (N.D. Ala.) as expert for plaintiffs;
h. Mathiason v. Rio Arriba County NM, No. D-117-CV-2007-00054 (D. N.M.) (Feb. 7, 2019) as expert for plaintiff;
i. Hutchinson v. Bates et. al., No. 2:17-CV-00185-WKW- GMB (Mar. 27, 2019) as expert for plaintiff;
j. Lewis v. East Baton Rouge Parish Prison LA, No. 3:16-CV-352-JWD-RLB (E.D. La.) (Jun. 24, 2019) as expert for plaintiff;
k. Belcher v. Lopinto, No. 2:2018cv07368 (E.D. La. 2019) (Dec. 5, 2019) as expert for plaintiffs; and,
l. Imoerati v. Semple, No. 3:18cv01847 (RNC) (D. Conn) (Mar. 11, 2020), on behalf of plaintiffs.
Expert Assignment
7. Plaintiffs’ Class Complaint alleges that the officials in charge of ICE detainees in the Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan, are placing Plaintiffs at risk of significant harm or death due to COVID-19.
8. Plaintiffs’ counsel has asked me to:
a. Evaluate whether existing policies and practices concerning ICE detainees in Calhoun comply with current, standard protocols for preventing the spread of coronavirus in detention facilities and for addressing prevention and treatment for detained people who are at high risk of serious illness or death from COVID-19; and,

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b. Evaluate whether existing policies and practices concerning ICE detainees in the Calhoun create a risk that Plaintiffs will suffer significant harm or death from COVID-19 while detained in the facility.
COVID-19 in ICE Detention
9. Coronavirus disease of 2019 (“COVID-19”) is a viral pandemic. This is a novel virus for which there is no established curative medical treatment and no vaccine.
10. COVID-19 infection rates are growing exponentially in the U.S. As of this date, the outbreak curve is in the early stages, meaning that communities are beginning to see their first cases, and that the number of cases overall is rising rapidly, with doubling times of cases and deaths in many communities between one and three days. The Governor of California predicted that over half of all residents will become infected with COVID-19 and the Commissioner of Health for New Jersey predicted, “I’m definitely going to get it, we all will.”1 The Centers for Disease Control and Prevention (“CDC”) now reports COVID-19 cases in all 50 states, the District of Columbia, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands.2
11. The State of Michigan reports that as of April 25, 2020, the number of people who have tested positive for COVID-19 in Michigan is 37,203, and 3,274 of these people have died from the disease so far.3
12. ICE will not be able to stop the entry of COVID-19 into ICE facilities: the reality is that the infection is inside multiple facilities already. When COVID-19 impacts a community, it will also impact the detention facilities. ICE reported its first confirmed case of a detainee who tested positive in New Jersey on March 24, 2020.4 As predicted, COVID-19 has spread rapidly in immigration detention centers. ICE reports that, as of April 24, there have been 317 detainees in 30 facilities across 15 states, 35 ICE employees in 11 facilities across 8 states, and 89 ICE employees not assigned to a facility who have all tested positive for COVID-19.5 These statistics do not include third-party contractors who work in ICE facilities who have tested positive for COVID-19, as ICE has stated that this information “isn’t something we have to provide.”6
13. This is likely just the tip of the iceberg in terms of the number of ICE staff and detainees who are already infected but are unaware due to the lack of testing nationwide, and the fact that people who are infected can be asymptomatic for several days. In New York, one of the areas
1 Mark Saunders, Newsom: 56 Percent of California Expect to Get Coronavirus, ABC 10 NEWS (Mar. 19, 2020), https://www.10news.com/news/coronavirus/newsom-56-percent-of-california-expect-to-get-coronavirus. 2 Coronavirus Disease 2019 (COVID-19): Cases in U.S., CENTERS FOR DISEASE CONTROL & PREVENTION (Updated Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us html. 3 State of Michigan, Coronavirus Virus, https://www.michigan.gov/coronavirus (Updated Apr. 25, 2020). 4 ICE Detainee Tests Positive for COVID-19 at Bergen County Jail, IMMIGRATION & CUSTOMS ENFORCEMENT (Mar. 24, 2020), https://www.ice.gov/news/releases/ice-detainee-tests-positive-covid-19-bergen-county-jail. 5 ICE Guidance on COVID-19, IMMIGRATION & CUSTOMS ENFORCEMENT (Updated Apr. 24, 2020), https://www.ice.gov/coronavirus. 6 Monique O. Madan, Two Workers at ICE Detention Center in Miami Test Positive for Coronavirus, MIAMI HERALD, Apr. 6, 2020, https://www miamiherald.com/news/local/immigration/article241791511.html.

Case 5:20-cv-10829-JEL-APP ECF No. 77 filed 05/15/20 PageID.2233 Page 4 of 77

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positive for COVID-19.10 As of April 17, this was higher than the rates of facilities in Chicago and New York.11 As of April 25, MDOC has reported 1,026 confirmed cases and 31 deaths in their facilities across the state of Michigan.12
16. COVID-19 has already arrived at one Michigan detention facility where ICE detainees are housed. As of April 24, five ICE detainees at the St. Clair County Jail in Michigan tested positive for COVID-19.13
17. Once COVID-19 is inside a facility, ICE will be unable to stop the spread of the virus throughout the facility given long-existing inadequacies in ICE’s medical care and also in light of how these facilities function. Newly released CDC guidance for correctional facilities makes clear that detention settings should plan for increased staffing shortages as COVID-19 impacts security and health staff.14 Based on my experience in ICE facilities, ICE has faced longstanding challenges in maintaining adequate staffing of health staff for many years, and the outbreak of this pandemic will dramatically worsen this problem.
18. I have been inside multiple ICE detention facilities, both county jails that house ICE detainees and dedicated facilities. My experience is that the densely packed housing areas, the manner in which health services, food services, recreation, bathroom and shower facilities for detained people, as well as the entry points, locker rooms, meal areas, control rooms for staff, all contribute to many people being in small spaces.
19. One of the most ubiquitous aspects of detention, the sally-port, or control port, a series of two locked gates that bring every staff member and detained person past a windowed control room as they stop between locked gates, provides but one example of this concern. The normal functioning of detention centers demands that during shift change for staff, or as the security count approaches for detained people, large numbers of people press into sally-ports as they move into or out of other areas of the facility. This process creates extremely close contact, and the windows in these sally ports that are used to hand out radios, keys and other equipment to staff ensure efficient passage of communicable disease from the control rooms into the sally port areas on a regular basis. Detention facilities are designed to force close contact between people and rely on massive amounts of movement every day from one part of the facility to another, e.g., for programming, access to cafeterias, commissary, medical, just to name a few. This movement is required of detained people as well as staff.
10 Ross Jones, 227 Inmates, Staff at Michigan Prison Have COVID-19, ABC 7 WXYZ Detroit, Apr. 17, 2020, https://www.wxyz.com/news/local-news/investigations/227-inmates-staff-at-michigan-prison-have-covid-19. 11 Id. 12 State of Michigan, Coronavirus: Michigan Data, https://www michigan.gov/coronavirus/0,9753,7-40698163_98173---,00 html (Updated Apr. 25, 2020). 13 ICE Guidance on COVID-19, IMMIGRATION & CUSTOMS ENFORCEMENT (Updated Apr. 24, 2020), https://www.ice.gov/coronavirus. 14 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CENTERS FOR DISEASE CONTROL & PREVENTION (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention html [hereinafter CDC Interim Guidance].

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20. My experience managing smaller outbreaks is that it is impossible to apply hospital-level infection control measures on security staff. In a hospital or nursing home, staff may move up and down a single hallway over their shift, and they may interact with one patient at a time. In detention settings, officers move great distances, are asked to shout or yell commands to large numbers of people, routinely apply handcuffs and operate heavy doors/gates, operate large correctional keys and are trained in the use of force. These basic duties cause the personal protective equipment they are given to quickly break and become useless, and even when in good working order, may impede their ability talk and be understood, in the case of masks. As a result, correctional officers will generally not wear the protective equipment that is an important part of preventing spread of the virus.
21. ICE’s protocols (addressed separately below) are simply insufficient to address the structural aspects of detention facilities that make transmission of COVID-19 so rapid.
22. For instance, data has shown that COVID-19 appears to be transmissible through aerosolized fecal matter. This is relevant because the plume of aerosolized fecal material that occurs when a toilet is flushed is not addressable by closing the lid of toilets in correctional and detention facilities, which lack a lid and often include a sink used for drinking and washing. This mode of transmission would pose a threat to anyone sharing a cell with a person who has COVID19 and could occur before a person becomes symptomatic. This mode of transmission could also extend beyond cellmates, especially in circumstances where common bathrooms exist or where open communication between cells exists.15
23. ICE currently detains thousands of people with risk factors that increase their risk of serious complications from COVID-19, including death and long-lasting complications after recovery, such as fibrotic changes to the lung. The risk factors listed by the CDC include older age and underlying medical conditions such as: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders (including diabetes mellitus), metabolic disorders, heart and lung disease (“including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function”), neurological and neurologic and neurodevelopmental conditions “[including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability…”], and current or recent pregnancy.16 The CDC also identifies individuals with a body mass index (BMI) at or above 40 to be at a higher risk for severe illness.17 Additional risk factors also include being a current smoker or having history of smoking,18 and hypertension, which the CDC has associated with increased illness
15 Diana Swift, Study: COVID-19 Is Also Spread by Fecal-Oral Route, MEDPAGE TODAY (Mar. 9, 2020), https://www medpagetoday.com/infectiousdisease/covid19/85315. 16 Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigationstrategy.pdf (accessed Apr. 24, 2020). 17 People Who Are at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 15, 2020) https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html. 18 Id.

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severity and outcomes.19 With time, hypertension has risen to become the most common comorbidity for individuals hospitalized for COVID-19 treatment.20
24. The CDC identifies age 65 and above as a risk factor for serious illness or death from COVID19. However, the CDC’s own data reflects that the risk of complications, measured by hospitalization rates, increase for those between ages 45-54 and 55-64.21 This is especially appropriate for ICE’s consideration of those in its custody. In correctional settings, the age of 50 or 55 is often used to identify older patients, because of the extremely high level of physical and behavioral health problems among this cohort of people.22 In addition, there is recent data on the critical risk of smoking for serious illness and death from COVID-19 infection, as well as data that reveals the rates of smoking to be highest among detained people over 50.23 For these reasons, it is my expert opinion that ICE should apply the age of 50 to identify detainees who have an increased vulnerability to COVID-19 based on their age for the same reason.24
25. Lastly, people with serious mental illness should be viewed as being at high risk for serious illness and death in detention settings. Many people with serious mental illness are prescribed antipsychotic medications, which tend to impair the brain’s ability to regulate heat.25 This is relevant during times of high environmental heat, but is also critical when a person becomes infected with a virus such as COVID-19 that produces fatigue, dehydration and high fevers. In addition, people with serious mental illness may face particular challenges in recognizing and reporting symptoms of COVID-19.26
19 Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2 htm. 20 See, e.g., Safiya Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area, J. OF THE AM. MEDICAL ASS’N (Apr. 22, 2020), https://jamanetwork.com/journals/jama/articlepdf/2765184/jama_richardson_2020_oi_200043.pdf. 21 Shika Garg, et al., Hospitalization Rates and Characteristics of Patients with Laboratory-Confirmed Coronavirus Disease 2019, March 1-30, 2020, COVID-NET, 14 States, March 1–30, 2020. MMWR Morb Mortal Wkly Rep. (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3 htm. 22 Kimberly A Skarupski et al., The Health of America’s Aging Prison Population, 40 EPIDEMIOLOGIC REV. 157 (2018), https://academic.oup.com/epirev/article/40/1/157/4951841. 23 Sara M. Kennedy et al., Cigarette Smoking Among Inmates by Race/Ethnicity, 18 NICOTINE & TOBACCO RESEARCH S73 (2016), https://www ncbi nlm.nih.gov/pmc/articles/PMC5100810/; Berkeley Lovelace, CDC Says Diabetes, Lung or Heart Disease and Smoking May Increase Risk of Severe Coronavirus Illness, CNBC.com, Mar. 31, 2020, https://www.cnbc.com/2020/03/31/cdc-says-diabetes-lung-disease-heart-disease-and-smoking-mayincrease-risk-of-severe-coronavirus-illness.html. 24 Sara M. Kennedy et al., Cigarette Smoking Among Inmates by Race/Ethnicity, 18 NICOTINE & TOBACCO RESEARCH S73 (2016), https://www ncbi nlm.nih.gov/pmc/articles/PMC5100810/; Berkeley Lovelace, CDC Says Diabetes, Lung or Heart Disease and Smoking May Increase Risk of Severe Coronavirus Illness, CNBC.com, Mar. 31, 2020, https://www.cnbc.com/2020/03/31/cdc-says-diabetes-lung-disease-heart-disease-and-smoking-mayincrease-risk-of-severe-coronavirus-illness.html. 25 See, e.g., Ohio Mental Health & Addiction Services, Heat-Related Illness in Individuals Using Psychiatric Medication (2016), https://www.mhrbeo.org/Downloads/2016%20heat-related%20illness%20brochure.pdf; Nora Eckert, How High Heat Can Impact Mental Health, Nat’l Public Radio (Sept. 4, 2019), https://www npr.org/2019/09/04/757034136/how-high-heat-can-impact-mental-health. 26 Jeffrey L. Geller et al., Patients With SMI in the Age of COVID-19: What Psychiatrists Need to Know, PSYCHIATRIC NEWS (Apr. 7, 2020), https://psychnews.psychiatryonline.org/doi/10.1176/appi.pn.2020.4b39.

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ICE Guidelines Contradict or Omit Several Important CDC Guidelines
26. I have reviewed the following documents setting forth ICE policy and practice concerning COVID-19 in detention facilities where ICE detainees are housed:
a. ICE’s March 6, 2020 Memorandum addressing COVID-19, a true and correct copy of which is attached to this declaration as Exhibit B (“ICE March 6 Memo”).
b. ICE’s March 27, 2020 Memorandum addressing COVID-19, a true and correct copy of which is attached to this declaration as Exhibit C (“ICE March 27 Memo”).
c. The April 3, 2020 declaration of James Jacobs, Assistant Field Office Director with the Detroit Field Office, concerning Calhoun (“Jacobs Decl.”). See Dkt. 11-3, PAGEID 221-227.
d. The webpage that ICE has established concerning “ICE Guidance on COVID-19,” which is located at https://www.ice.gov/coronavirus (last visited Apr. 24, 2020) (“ICE Guidance on COVID-19 webpage”).
e. The April 4, 2020 guidance from ICE Enforcement and Removal Operations (“ERO”), a true and correct copy of which is attached to this declaration as Exhibit D (“ICE April 4 Guidance”).
f. The April 10, 2020 ICE ERO COVID-19 Pandemic Response Requirements (“April 10 ERO Pandemic Response Requirements”), much of which applies to Calhoun and any setting where ICE detainees are held. A true and correct copy of the April 10 ERO Pandemic Response Requirements is attached to this declaration as Exhibit E.
g. It is my understanding that Calhoun does not have its own COVID-19 pandemic response plan.
I refer to these information sources collectively as the “ICE COVID-19 protocols and guidance.”
27. Social distancing: The ICE COVID-19 protocols and guidance fail to address one of the most important CDC key recommendations: the need for social distancing in detention facilities. The ICE March 27 Memo and the April 10 ERO Pandemic Response Requirements each briefly mention social distancing, but fail to address how ICE facilities will enact modified meal or recreation times to provide for social distancing. These protocols also fail to address the most common scenarios in which high-risk detainees find themselves in close quarters that make social distancing impossible, including shared cells, medication lines, bathroom facilities, common walkways, day rooms, sally ports, and transportation. The ICE Guidance on COVID-19 webpage also fails to delineate how social distancing can be accomplished in settings like Calhoun. Again, because there is no cure for COVID-19, social distancing remains the primary means of prevention. Any guidance that treats it as merely recommended, rather than required at all times, remains inadequate to mitigate the

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spread of COVID-19. As of now, ICE has still failed to meaningfully implement this precaution into its guidance.
28. Screening: The April 10 ERO Pandemic Response Requirements identifies a list of conditions that place detainees at high risk of serious complications from COVID-19. Both this document and prior lists promulgated by ICE fail to provide a complete list of risk factors consistent with CDC guidelines.
a. The April 10 ERO Pandemic Response Requirements fail to identify pregnant or post-partum women and people with histories of smoking as people at high risk of serious illness from COVID-19.
b. The ERO docket review guidelines from several days earlier failed to identify smoking history or BMI at or over 40 as risk factors, both of which are risk factors identified by the CDC.27
c. The April 10 ERO Pandemic Response Requirements identify 65 as the onset of age-related heightened risk of serious illness from COVID-19, whereas the prior ERO guidance identified 60 as the triggering age. But based on correctional standards, the correct benchmark for when people begin experiencing age-related risk for serious illness or death from COVID-19 is 50. As discussed above, this is due to the extremely high degree of physical and behavioral health problems among people in correctional and detention institutions. In addition, data from U.S. COVID-19 cases have found a higher hospitalization and intensive care admission rate for those between ages 45-54 and 55-64.28
d. The screening protocol provides that asymptomatic people with suspected COVID-19 contact or risk factors will be quarantined and monitored for 14 days. However, given the current prevalence of COVID-19, a majority of new admissions to detention will likely fit into this category. ICE or local facilities would have to expand medical capacity to monitor new detainees in accordance with this guideline, which have not indicated the capacity to do so.
29. The April 10 ERO Pandemic Response Requirements appear to identify patients at high-risk of serious illness from COVID-19 for the purpose of docket review, but critically fail to encourage or require any higher level of protection that facility officials must provide these detainees in order to protect them from contracting COVID-19.
a. The April 10 ERO Pandemic Response Requirements instruct facility staff to identify high-risk detainees and to email their names, location, medical issues, medications, and facility point of contact information to ICE headquarters. The
27 CDC, Groups at Higher Risk for Severe Illness, Coronavirus Disease 2019 (COVID-19) (last visited Apr. 14, 2020); https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk html (listing smoking history and body mass index of 40 or higher). 28 See supra, note 21.

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purpose of this action appears to be to enable ICE to review the identified highrisk detainees in order to determine who to release. See Exhibit E at 14.
b. But the document provides little to no guidance, however, about the specific measures that facility staff must take to ensure that these high-risk patients are protected from coronavirus infection. It notes, “If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).” Exhibit E at 15. Nothing in the guidance requires their release or specific protective measures for high-risk detainees.
c. This guidance is entirely insufficient. It is not enough for ICE to identify some of the categories of detainees at increased risk of serious illness from COVID-19 and to delineate a process for ERO to identify these individuals. Instead, ICE must identify all high-risk detainees and establish clear protocols for increased surveillance of these individuals, including through twice daily symptom and temperature checks.
30. The April 10 ERO Pandemic Response Requirements create an unwieldy and unrealistic process for facilities to notify ICE headquarters about high-risk detainees.
a. As discussed above, the document contemplates a process by which each facility with ICE detainees will sends emails to ERO with identifying information about detainees who have risk factors. But this process is unwieldy and unlikely to be effective.
b. Based on my experience creating surveillance tools for high-risk patients in multiple detention scenarios, several key elements of this process are problematic.
i. The process of emailing headquarters thousands of names with relevant information, or even hundreds of spreadsheets, tables and other documents, creates an unreliable and error-prone system for alerting ERO or tracking the most vulnerable detainees inside ICE facilities.
ii. The process identified by ICE is static, meaning that as detained people move from one facility to another, there will be no way for their location to be automatically updated with their high-risk status, requiring labor intensive and error-prone records reviews.
iii. The approach delineated by the April 10 ERO Pandemic Response Requirements will not allow ICE leadership to ensure day-to-day management of the high-risk population. The process does not establish an automatic notification process or ensure that ICE leadership will automatically be notified when people are released or become ill from non-COVID-19 reasons. Nor does the process establish an automatic cross-check process or ensure that

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emails to ERO regarding COVID-19 cases amongst ICE detainees will be automatically cross-checked against this initial batch of hundreds or thousands of emails from facilities identifying high-risk patients.
c. Instead of the system proposed by the April 10 ERO Pandemic Response Requirements, ICE should create a single portal into which every facility can enter data on ICE detainees who meet CDC criteria for being high risk. I employed such a portal as Chief Medical Officer of the NYC jail system. We relied on this system before and after the implementation of an electronic medical record as a way to identify high-risk patients and to track them as they moved from one facility to another. This type of approach is essential for ICE to meet its stated obligations to plan for the re-entry of people who are leaving amid the COVID-19 crisis and to coordinate with local and state public health partners.
d. The net effect of the April 10 Pandemic Response Requirements’ cumbersome and inefficient process will be that far fewer high-risk detainees will be released than otherwise would be the case and more high-risk detainees will experience serious illness and death while in ICE detention.
31. The April 10 ERO Pandemic Response Plan fails to include vital elements of CDC guidance on preventing the spread of COVID-19 inside detention facilities.
a. Notably, the April 10 ERO Pandemic Response Requirements fail to mention or provide guidance on key aspects of social distancing including: how to ensure that staff and detainees maintain 6 feet of distance between themselves and others in
1. intake pens, 2. clinical and medication lines, 3. bathroom and shower areas, 4. sally ports, 5. staff entry, 6. the symptom checking process, and 7. locker room areas; 8. other areas of crowded housing units.
b. The April 10 ERO Pandemic Response Requirements fails to include guidance on the importance of staff communication with detainees about changes to their daily routine and how they can contribute to risk reduction, both of which are explicitly identified by the CDC guidelines as necessary to protect the health and safety of people in detention facilities.
c. The April 10 ERO Pandemic Response Requirements fails to include many critical aspects of cleaning and disinfection outlined in CDC guidelines including the following.

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i. CDC guidelines identify a higher level of intervention after a person has been identified as suspected COVID-19 case. This common-sense approach, which includes use of PPE for the person cleaning, as well as waiting for one say to perform cleaning and ensuring no people come into contact with the area is critical to ensuring that the most high-risk scenarios encountered by detainees and staff alike are addressed with an appropriate response.
ii. The April 10 ERO Pandemic Response Requirements instructs that vehicles should be cleaned after transport of a known/suspected case, and generically notes that “surfaces and objects that are frequently touched, especially in common areas,” should be cleaned and disinfected “several times a day,” but fails to specifically instruct frequent cleaning and disinfection of all hightouch surfaces in the computers, equipment, and belongings of staff, and in detainees’ housing area, cell, bunk, and personal belongings. This cleaning is in addition to any routine cleaning that occurs in common areas, and must occur as part of the response to any new known or suspected case.
iii. CDC guidelines indicate that in settings where people are held overnight, response to a known or suspected COVID-19 case should include closing off areas used by the person who is sick, opening outside doors and windows to increase air circulation in the area and waiting 24 hours (or as long as possible) before cleaning/disinfecting. If 24 hours is not feasible, wait as long as possible.29
iv. The April 10 ERO Pandemic Response Requirements fail to establish what PPE should be utilized by staff or detainees when cleaning areas occupied by a person known or suspected to have COVID-19.
d. The April 10 ERO Pandemic Response Requirements instructs that everyone in detention facilities must engage in hand washing for 20 seconds with soap and water, but fails to address how this can be accomplished in facilities that utilize metered faucets that make this process essentially impossible.
e. The April 10 ERO Pandemic Response Requirements fail to counsel against reliance on detainees for conducting critical environmental cleaning. Such reliance, without proper training, protection or supervision, represents a gross deviation from correctional practices will likely contribute to the spread of COVID-19 throughout the ICE detention system.
f. The April 10 ERO Pandemic Response Requirements fail to establish or mandate a respiratory protection program, a critical CDC guideline: “If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained
29 CDC, Cleaning and Disinfection for Community Facilities, Coronavirus Disease 2019, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html (last checked Apr. 15, 2020).

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persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.” Simply giving out N95 or other masks to staff and detainees and failing to train them and identify the high-risk tasks or scenarios they will encounter serves only to decrease the overall effectiveness of infection control, and increase the risk of serious illness and death of high-risk detainees in ICE facilities.
32. The April 10 ERO Pandemic Response Requirements fail to address what facilities must do to meet the re-entry needs of people leaving ICE custody. This is a critical failure given ERO’s ongoing docket review, which should result in some releases of high-risk detainees. The requirements should follow the following CDC recommendations, which seek to protect the health and safety of detainees, staff, and the communities to which detainees return:
a. If an individual set for release does not clear the screening process, facilities should follow the protocol for a suspected COVID-19 case, including by providing a face mask to the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing;30
b. If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care; and
c. Before releasing an incarcerated/detained individual with COVID-19 symptoms to a community-based facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
33. Use of isolation: The ICE COVID-19 protocols and guidance specify that “isolation rooms” will be used to monitor people who are symptomatic with COVID-19. See Ex. B. My experience in visiting and working in detention facilities across the nation is that each facility has one to four cells located in or near the medical clinic that meet this definition. When COVID-19 arrives in a facility, there will be many more people who meet this criteria of being symptomatic, and ICE will need to designate entire housing areas for this level of increased surveillance of symptomatic patients. This approach requires that empty housing areas be available, so that small numbers of symptomatic patients can be cohorted together away from those without symptoms. Facilities that are over 80% capacity will find this basic approach impossible once they start to see multiple symptomatic patients. Based on my experience visiting ICE detention facilities, this process will be essentially impossible.
30 CDC, Medical Isolation of Confirmed or Suspected COVID-19 Cases, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html#Medicalisolation (last visited Apr. 14, 2020).

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a. Each confirmed case results in loss of staff or isolation of detainees and quarantine of their close (housing area) contacts. Unless a detention setting is at well less than 50% of capacity in terms of daily census, it is extremely improbable that the facility will be able to manage the physical separation of symptomatic and known COVID19 patients, quarantine of their contacts for 14 days, and increased surveillance of people who are asymptomatic and have known risk factors. The maximum percentage capacity needed to allow proper quarantine and isolation may be even much lower than 50%, depending on the physical layout of the facility and available staff capacity.31
b. While the ICE COVID-19 Guidance webpage indicates a desire to reduce the population of detention facilities to 70 percent or less,32 none of the ICE COVID19 protocols and guidance mandate that Calhoun ensures that the facility is at any particular percentage of capacity as required to provide sufficient space for proper isolation and quarantine of people with COVID-19 symptoms or known exposure to laboratory confirmed cases of COVID-19.
c. Moreover, ICE should not employ isolation in locked cells as a primary means to protect either at risk patients, or patients who are symptomatic. When patients are placed into locked cells, the level of monitoring is dramatically reduced. In addition, this practice causes new health problems in the form of risk for suicide and self-harm. Also, isolation units often drive increased physical interaction between staff and patients, in the form of increased handcuffing, escorting individuals to and from showers and other out of cell encounters, and increased uses of force due to the psychological stress these units cause.
d. In sum, it is my expert opinion, and that of other correctional experts, that the use of security isolation and/or lockdown is not a medically appropriate method for abating the substantial risk of harm from COVID-19.33
34. Testing: The April 10 ERO Pandemic Response Requirements fails to address the lack of comprehensive COVID-19 testing in ICE facilities. There is no guidance for clinical staff on when to test patients for COVID-19, which leaves detained patients at a significant disadvantage. Without any clear guidance for testing, ICE will be unable to identify “confirmed cases,” to timely take necessary precautions to contain the spread of COVID-19. While the guidelines for testing may evolve over time, the protocol should create a structure for daily dissemination of testing criteria from ICE leadership, and time for daily briefings among all health staff at the start of every shift, to review this and other elements of the COVID-19 response. This briefing must include participation by epidemiologists tasked to a COVID-19 response who are also coordinating with local and federal COVID-19 activities.
31 Note that ICE’s guidance as to the proper percentage of reduction is inconsistent. ICE’s April 10 Guidance, Ex. E, specifies reduction to 75 percent capacity; ICE’s website specifies reduction to 70 percent capacity. See ICE, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited Apr. 14, 2020). 32 ICE, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited Apr. 14, 2020). 33 David Cloud, et al., The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Apr. 9, 2020, https://amend.us/wp-content/uploads/2020/04/MedicalIsolation-vs-Solitary_Amend.pdf.

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35. Staffing: The ICE COVID-19 protocols and guidance fail to address the key CDC recommendation on the need for adequate staffing and training of staff. ICE’s March 27 Memo simply states that “facilities are expected to be appropriately staffed,” but provides no guidance whatsoever on how that can be accomplished in the context of existing staffing gaps, a decreased workforce, and increased needs resulting from steps required to screen, monitor and treat detainees for COVID-19. See Exhibit C.
a. CDC guidelines make clear the need for a concrete plan for ensuring adequate staffing as part of the COVID-19 response. These guidelines also make clear the need to orient staff to the critical need to stay home if and when they experience symptoms of COVID-19 infection. In sum, aside from the ICE March 27 Memo’s “expectation” of appropriate staffing levels, ICE has not implemented any meaningful oversight system to ensure that staffing levels are met.
b. Critically, appropriate staffing levels refers not only to a sufficient number of staff but also to a sufficient number of qualified staff. In my experience, many facilities rely heavily on guards and LPNs to do medical work that they are not qualified to do; likewise, many facilities rely on RNs to do medical work that only doctors or physicianassistants are qualified to do. There is no indication whatsoever that ICE is implementing procedures in Calhoun to ensure not only sufficient numbers of staff but also sufficient numbers of qualified staff. The current shortages in staffing for health staff in particular, stretch across all communities, and staffing shortages represent a real emergency in many settings already. This is particularly concerning given that many ICE facilities are located in rural areas far from qualified medical professionals. This is a very serious defect that must be immediately remediated because access to qualified medical professionals is crucial during this rapidly evolving pandemic.
Lack of COVID-19 Plan in Place for Calhoun
36. The April 10 ERO Pandemic Response Requirements mandate that every facility holding ICE detainees have a COVID-19 mitigation plan in place. The document specifies:
“Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
- To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
- To maintain essential functions and services at the facility throughout the pendency of the pandemic;
- To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
- To establish means to monitor, cohort, quarantine, and isolate the sick from the well.” Ex. E.

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Case 5:20-cv-10829-JEL-APP ECF No. 77 filed 05/15/20 PageID.2246 Page 17 of 77

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2. Mr. Rosales Borboa described being housed in a Pod with a total of 37 to 42 detainees who share two bathrooms with four toilets, three showers and four sinks. He shares a 20 by 8 feet cubicle with seven other detainees in bunk beds that are at most three feet apart from each other. He too undergoes lockdowns four times a day, for about 9.5 hours, during which he is confined to this small space with seven other detainees. Mr. Rosales Borboa is also constantly at arms-length distance from others during recreation and meal times.
3. Mr. Medina Euceda described sleeping in a dorm with 30 bunk beds and eating in a communal space, both places where no one is able to practice social distancing.
4. Ms. Rodriguez Salabarria described sharing a cell with four twin-sized beds and six other detainees who change frequently. She has had ten different detainees over the past two weeks. She is unable to maintain six feet distance between her and other inmates in this space nor when she is eating.
5. Ms. Zhang described sharing a cell with four other people, where the beds are only one to two feet apart. She is also unable to practice social distancing.
ii. Lack of access to hand washing and sanitizing supplies.
1. Mr. Alhalmi described how there is often no soap available for handwashing in their shared bathrooms. Detainees also do not have access to hand sanitizer, gloves or masks.
2. Mr. Rosales Borboa described how detainees are responsible for cleaning their sleeping areas, but are not provided masks, gloves, or hand sanitizer. Other than a short period when detainees were given masks while being transferred from one pod to another, because of a suspected case of COVID-19, detainees are now penalized with solitary confinement if caught with a mask. Detainees can go for up to two days without being provided soap.
3. According to Mr. Medina Euceda, detainees have not been provided masks, personal protective equipment, or any additional cleaning supplies.
4. Ms. Rodriguez Salabarria reported that soap is not consistently provided to detainees. They are also not provided sufficient time to properly wash up in the bathroom.

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d. The MDOC has reported posting guidance from the CDC on COVID-19 concerns, but this is not enough. CDC guidelines make clear that preparation for COVID-19 in a detention setting involves multiple levels of active work. The key aspects of the CDC guidance regarding COVID-19 response involve active preparation before the arrival of COVID-19, and clear and evidence-based responses once cases are identified. Preparation includes communication with staff and inmates about infection control, ensuring that environmental cleaning and access to hand washing is occurring per CDC guidelines, limiting large group events and initiating social distancing, creating communication with local public health partners, identifying high risk patients, and creating an emergency COVID-19 plan. Once COVID-19 arrives, efforts should include screening, testing, identification, and tracking of new cases, quarantining of close contacts, continuation of infection control, staffing and other aspects of the emergency plan, and increased coordination with the local health department, especially regarding testing, isolation, quarantining and hospitalization.35
41. The failure to implement a basic COVID-19 emergency plan, and the omission of basic elements of the CDC guidelines within Calhoun places people at a high risk of contracting COVID-19 and suffering serious complications—including death.
42. In my expert opinion, ICE and Calhoun should reduce the facility census to the point where social distancing can be accomplished at all times in order to reduce the risk of transmission to lower risk detainees. This will also reduce the burden on the local health care infrastructure, which will otherwise bear the consequences of having to treat individuals at Calhoun when infected and limit the resources available for others in the community.
43. Furthermore, ICE and Calhoun must immediately release Plaintiffs who possess risk factors to prevent their serious illness and/or death. The most recent ERO protocol (Ex. E) makes clear that they do not plan to establish specific protections for high-risk patients and will wait for them to become symptomatic. This approach will result in preventable morbidity and mortality. Both the oversight authority of the NYC jail system, and the current medical director for geriatrics and complex care of the system have called for high-risk patients to be immediately transferred out of detention.36 ICE’s medical subject matter experts have similarly called for the release of high-risk patients and “all immigration detainees who do not pose a security risk” as part of a nationwide effort to stop the spread of the coronavirus.37
35 CDC, Resources for Correctional and Detention Facilities: Before and During an Outbreak, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/index.html (last visited Apr. 14, 2020). 36 Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients from the Coronavirus, NEW YORKER (Mar. 20, 2020), https://www newyorker.com/news/news-desk/a-rikers-island-doctor-speaks-out-to-saveher-elderly-patients-from-the-coronavirus; NYC Officials Call for Release of “Most at Risk” on Rikers Island as More Test Positive for Virus, NBC4 NEW YORK (Mar. 18, 2020), https://www.nbcnewyork.com/news/local/nyc-officials-call-for-release-of-most-at-risk-on-rikers-prison-as-moretest-positive-for-virus/2333348/. 37 Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie Thompson et al. (Mar. 19, 2020), https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-to-Congress.pdf.

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44. ICE faces a completely preventable disaster by continuing to detain high-risk patients and others who could otherwise be released as COVID-19 arrives in facilities where the virus will quickly spread, especially in settings like Calhoun, which has failed to even develop and implement a COVID-19 Emergency Plan or develop practices that are consistent with CDC guidelines. The basic limitations of the physical plant and looming staffing concerns make clear that these patients are in peril of serious illness or death if they remain in detention. In addition, transfer of these patients to other ICE detention facilities will only compound exposure and transmission of COVID-19. They must be released immediately.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 25th day in April 2020 in Port Washington, New York Signed,
Homer Venters MD, MS

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Exhibit A

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Dr. Homer D. Venters
10 ½ Jefferson St., Port Washington, NY, 11050 hventers@gmail.com, Phone: 646-734-5994

HEALTH ADMINISTRATOR

PHYSICIAN

EPIDEMIOLOGIST

Professional Profile
 International leader in provision and improvement of health services to patients with criminal justice involvement.
 Innovator in linking care of the incarcerated to Medicaid, health homes, DSRIPs.  Successful implementer of nations’ first electronic health record, performance
dashboards and health information exchange among pre-trial patients.  Award winning epidemiologist focused on the intersection of health, criminal justice
and human rights in the United States and developing nations.  Human rights leader with experience using forensic science, epidemiology and public
health methods to prevent and document human rights abuses.
Professional Experience
President, Community Oriented Correctional Health Services (COCHS), 1/1/2020present. o Lead COCHS efforts to provide technical assistance, policy guidance and research
regarding correctional health and justice reform. o Oversee operations and programmatic development of COCHS o Serve as primary liaison between COCHS board, funders, staff and partners.
Senior Health and Justice Fellow, Community Oriented Correctional Health Services (COCHS), 12/1/18-12/31/2018 o Lead COCHS efforts to expand Medicaid waivers for funding of care for detained
persons relating to Substance Use and Hepatitis C. o Develop and implement COCHS strategy for promoting non-profit models of
diversion and correctional health care.
Medical/Forensic Expert, 3/2016-present o Provide expert input, review and testimony regarding health care, quality
improvement, electronic health records and data analysis in detention settings.
Director of Programs, Physicians for Human Rights, 3/16-11/18. o Lead medical forensic documentation efforts of mass crimes against Rohingya and
Yazidi people. o Initiate vicarious trauma program. o Expand forensic documentation of mass killings and war crimes. o Develop and support sexual violence capacity development with physicians, nurses
and judges. o Expand documentation of attacks against health staff and facilities in Syria and
Yemen.

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Chief Medical Officer/Assistant Vice President, Correctional Health Services, NYC Health and Hospitals Corporation 8/15-3/17.
o Transitioned entire clinical service (1,400 staff) from a for-profit staffing company model to a new division within NYC H + H.
o Developed new models of mental health and substance abuse care that significantly lowered morbidity and other adverse events.
o Connected patients to local health systems, DSRIP and health homes using approximately $5 million in external funding (grants available on request).
o Reduced overall mortality in the nation’s second largest jail system. o Increased operating budget from $140 million to $160 million. o Implemented nation’s first patient experience, provider engagement and racial
disparities programs for correctional health.
Assistant Commissioner, Correctional Health Services, New York Department of Health and Mental Hygiene, 6/11-8/15.
o Implemented nation’s first electronic medical record and health information exchange for 1,400 staff and 75,000 patients in a jail.
o Developed bilateral agreements and programs with local health homes to identify incarcerated patients and coordinate care.
o Increased operating budget of health service from $115 million to $140 million. o Established surveillance systems for injuries, sexual assault and mental health that
drove new program development and received American Public Health Association Paper of the Year 2014. o Personally care for and reported on over 100 patients injured during violent encounters with jail security staff.
Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 1/10-6/11.
o Directed all aspects of medical care for 75,000 patients annually in 12 jails, including specialty, dental, primary care and emergency response.
o Direct all aspects of response to infectious outbreaks of H1N1, Legionella, Clostridium Difficile.
o Developed new protocols to identify and report on injuries and sexual assault among patients.
Deputy Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 11/08-12/09.
o Developed training program with Montefiore Social internal medicine residency program.
o Directed and delivered health services in 2 jails.
Clinical Attending Physician, Bellevue/NYU Clinic for Survivors of Torture, 10/0712/11.
Clinical Attending Physician, Montefiore Medical Center Bronx NY, Adult Medicine, 1/08-11/09.

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Education and Training
Fellow, Public Health Research, New York University 2007-2009. MS 6/2009 Projects: Health care for detained immigrants, Health Status of African immigrants in NYC. Resident, Social Internal Medicine, Montefiore Medical Center/Albert Einstein
University7/2004- 5/2007. M.D., University of Illinois, Urbana, 12/2003. M.S. Biology, University of Illinois, Urbana, 6/03. B.A. International Relations, Tufts University, Medford, MA, 1989.
Academic Appointments, Licensure
Clinical Associate Professor, New York University College of Global Public Health, 5/18-present.
Clinical Instructor, New York University Langone School of Medicine, 2007-2018.
M.D. New York (2007-present).
Media
TV i24 Crossroads re Suicide in U.S. Jails 8/13/19.
i24 Crossroads re re Life and Death in Rikers Island 6/13/19.
Amanpour & Company, NPR/PBS re Life and Death in Rikers Island 4/15/19.
CNN, Christiane Amanpour re Forensic documentation of mass crimes against Rohingya. 7/11/18.
i24 Crossroads with David Shuster re health crisis among refugees in Syria. 7/6/18.
Canadian Broadcasting Corporation TV with Sylvie Fournier (in French) re crowd control weapons. 5/10/18
i24 Crossroads with David Shuster re Cholera outbreak in Yemen. 2/15/18.
China TV re WHO guidelines on HIV medication access 9/22/17.
Radio/Podcast Morning Edition, NPR re Health Risks of Criminal Justice System. 8/9/19.
Fresh Air with Terry Gross, NPR re Life and Death in Rikers Island, 3/6/19.
Morning Edition, NPR re Life and Death in Rikers Island, 2/22/19.
LeShow with Harry Sherer re forensic documentation of mass crimes in Myanmar, Syria,

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Iraq. 4/17/18.
Print articles and public testimony Oped: Four ways to protect our jails and prisons from coronavirus. The Hill 2/29/20.
Oped: It’s Time to Eliminate the Drunk Tank. The Hill 1/28/20.
Oped: With Kathy Morse. A Visit with my Incarcerated Mother. The Hill 9/24/19.
Oped: With Five Omar Muallim-Ak. The Truth about Suicide Behind Bars is Knowable. The Hill 8/13/19.
Oped: With Katherine McKenzie. Policymakers, provide adequate health care in prisons and detention centers. CNN Opinion, 7/18/19. Oped: Getting serious about preventable deaths and injuries behind bars. The Hill, 7/5/19.
Testimony: Access to Medication Assisted Treatment in Prisons and Jails, New York State Assembly Committee on Alcoholism and Drug Abuse, Assembly Committee on Health, and Assembly Committee on Correction. NY, NY, 11/14/18.
Oped: Attacks in Syria and Yemen are turning disease into a weapon of war, STAT News, 7/7/17.
Testimony: Connecticut Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for prisoners. Hartford CT, 2/3/17.
Testimony: Venters HD, New York Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for juveniles in New York. July 10, 2014. NY NY.
Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY. Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY.
Oped: Venters HD and Keller AS, The Health of Immigrant Detainees. Boston Globe, April 11, 2009.
Testimony: U.S. House of Representatives, House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law: Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008.

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Peer Reviewed Publications
Parmar PK, Leigh J, Venters H, Nelson T. Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh. Lancet Planet Health. 2019 Mar;3(3):e144-e153.
Venters H. Notions from Kavanaugh hearings contradict medical facts. Lancet. 10/5/18.
Taylor GP, Castro I, Rebergen C, Rycroft M, Nuwayhid I, Rubenstein L, Tarakji A, Modirzadeh N, Venters H, Jabbour S. Protecting health care in armed conflict: action towards accountability. Lancet. 4/14/18.
Katyal M, Leibowitz R, Venters H. IGRA-Based Screening for Latent Tuberculosis Infection in Persons Newly Incarcerated in New York City Jails. J Correct Health Care. 2018 4/18.
Harocopos A, Allen B, Glowa-Kollisch S, Venters H, Paone D, Macdonald R. The Rikers Island Hot Spotters: Exploring the Needs of the Most Frequently Incarcerated. J Health Care Poor Underserved. 4/28/17.
MacDonald R, Akiyama MJ, Kopolow A, Rosner Z, McGahee W, Joseph R, Jaffer M, Venters H. Feasibility of Treating Hepatitis C in a Transient Jail Population. Open Forum Infect Dis. 7/7/18.
Siegler A, Kaba F, MacDonald R, Venters H. Head Trauma in Jail and Implications for Chronic Traumatic Encephalopathy. J Health Care Poor and Underserved. In Press (May 2017).
Ford E, Kim S, Venters H. Sexual abuse and injury during incarceration reveal the need for reentry trauma screening. Lancet. 4/8/18.
Alex B, Weiss DB, Kaba F, Rosner Z, Lee D, Lim S, Venters H, MacDonald R. Death After Jail Release. J Correct Health Care. 1/17.
Akiyama MJ, Kaba F, Rosner Z, Alper H, Kopolow A, Litwin AH, Venters H, MacDonald R. Correlates of Hepatitis C Virus Infection in the Targeted Testing Program of the New York City Jail System. Public Health Rep. 1/17.
Kalra R, Kollisch SG, MacDonald R, Dickey N, Rosner Z, Venters H. Staff Satisfaction, Ethical Concerns, and Burnout in the New York City Jail Health System. J Correct Health Care. 2016 Oct;22(4):383-392.
Venters H. A Three-Dimensional Action Plan to Raise the Quality of Care of US Correctional Health and Promote Alternatives to Incarceration. Am J Public Health. April 2016.104.
Glowa-Kollisch S, Kaba F, Waters A, Leung YJ, Ford E, Venters H. From Punishment to Treatment: The “Clinical Alternative to Punitive Segregation” (CAPS) Program in New York City Jails. Int J Env Res Public Health. 2016. 13(2),182.
Jaffer M, Ayad J, Tungol JG, MacDonald R, Dickey N, Venters H. Improving Transgender Healthcare in the New York City Correctional System. LGBT Health. 2016 1/8/16.

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Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Env Res Public Health. 2015. 11/10/15.
Michelle Martelle, Benjamin Farber, Richard Stazesky, Nathaniel Dickey, Amanda Parsons, Homer Venters. Meaningful Use of an Electronic Health Record in the NYC Jail System. Am J Public Health. 2015. 8/12/15.
Fatos Kaba, Angela Solimo, Jasmine Graves, Sarah Glowa-Kollisch, Allison Vise, Ross MacDonald, Anthony Waters, Zachary Rosner, Nathaniel Dickey, Sonia Angell, Homer Venters. Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service. Am J Public Health. 2015. 8/12/15.
Ross MacDonald, Fatos Kaba, Zachary Rosner, Alison Vise, Michelle Skerker, David Weiss, Michelle Brittner, Nathaniel Dickey, Homer Venters. The Rikers Island Hot Spotters. Am J Public Health. 2015. 9/17/15.
Selling Molly Skerker, Nathaniel Dickey, Dana Schonberg, Ross MacDonald, Homer Venters. Improving Antenatal Care for Incarcerated Women: fulfilling the promise of the Sustainable Development Goals. Bulletin of the World Health Organization.2015.
Jasmine Graves, Jessica Steele, Fatos Kaba, Cassandra Ramdath, Zachary Rosner, Ross MacDonald, Nathanial Dickey, Homer Venters Traumatic Brain Injury and Structural Violence among Adolescent males in the NYC Jail System J Health Care Poor Underserved. 2015;26(2):345-57.
Glowa-Kollisch S, Graves J, Dickey N, MacDonald R, Rosner Z, Waters A, Venters H. DataDriven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail. Health and Human Rights. Online ahead of print, 3/12/15.
Teixeira PA1, Jordan AO, Zaller N, Shah D, Venters H. Health Outcomes for HIV-Infected Persons Released From the New York City Jail System With a Transitional Care-Coordination Plan. 2014. Am J Public Health. 2014 Dec 18.
Selling D, Lee D, Solimo A, Venters H. A Road Not Taken: Substance Abuse Programming in the New York City Jail System. J Correct Health Care. 2014 Nov 17.
Glowa-Kollisch S, Lim S, Summers C, Cohen L, Selling D, Venters H. Beyond the Bridge: Evaluating a Novel Mental Health Program in the New York City Jail System. Am J Public Health. 2014 Sep 11.
Glowa-Kollisch S, Andrade K, Stazesky R, Teixeira P, Kaba F, MacDonald R, Rosner Z, Selling D, Parsons A, Venters H. Data-Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail. Health and Human Rights. 2014. Vol 16 (1): 157-165.
MacDonald R, Rosner Z, Venters H. Case series of exercise-induced rhabdomyolysis in the New York City Jail System. Am J Emerg Med. 2014. Vol 32(5): 446-7.
Bechelli M, Caudy M, Gardner T, Huber A, Mancuso D, Samuels P, Shah T, Venters H. Case Studies from Three States: Breaking Down Silos Between Health Care and Criminal Justice. Health Affairs. 2014. Vol. 3. 33(3):474-81.

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Selling D, Solimo A, Lee D, Horne K, Panove E, Venters H. Surveillance of suicidal and nonsuicidal self-injury in the new York city jail system. J Correct Health Care. 2014. Apr:20(2).
Kaba F, Diamond P, Haque A, MacDonald R, Venters H. Traumatic Brain Injury Among Newly Admitted Adolescents in the New York City Jail System. J Adolesc Health. 2014. Vol 54(5): 6157.
Monga P, Keller A, Venters H. Prevention and Punishment: Barriers to accessing health services for undocumented immigrants in the United States. LAWS. 2014. 3(1).
Kaba F, Lewsi A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.
MacDonald R, Parsons A, Venters H. The Triple Aims of Correctional Health: Patient safety, Population Health and Human Rights. Journal of Health Care for the Poor and Underserved. 2013. 24(3).
Parvez FM, Katyal M, Alper H, Leibowitz R, Venters H. Female sex workers incarcerated in New York City jails: prevalence of sexually transmitted infections and associated risk behaviors. Sexually Transmitted Infections. 89:280-284. 2013.
Brittain J, Axelrod G, Venters H. Deaths in New York City Jails: 2001 – 2009. Am J Public Health. 2013 103:4.
Jordan AO, Cohen LR, Harriman G, Teixeira PA, Cruzado-Quinones J, Venters H. Transitional Care Coordination in New York City Jails: Facilitating Linkages to Care for People with HIV Returning Home from Rikers Island. AIDS Behav. Nov. 2012.
Jaffer M, Kimura C, Venters H. Improving medical care for patients with HIV in New York City jails. J Correct Health Care. 2012 Jul;18(3):246-50.
Ludwig A, Parsons, A, Cohen, L, Venters H. Injury Surveillance in the NYC Jail System, Am J Public Health 2012 Jun;102(6).
Venters H, Keller, AS. Psychiatric Services. (2012) Diversion of Mentally Ill Patients from Court-ordered care to Immigration Detention. Epub. 4/2012.
Venters H, Gany, F. Journal of Immigrant and Minority Health (2011) Mental Health Concerns Among African Immigrants. 13(4): 795-7.
Venters H, Foote M, Keller AS. Journal of Immigrant and Minority Health. (2010) Medical Advocacy on Behalf of Detained Immigrants. 13(3): 625-8.
Venters H, McNeely J, Keller AS. Health and Human Rights. (2010) HIV Screening and Care for Immigration Detainees. 11(2) 91-102.
Venters H, Keller AS. Journal of Health Care for the Poor and Underserved. (2009) The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. 20:951-957.

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Venters H, Gany, F. Journal of Immigrant and Minority Health (2009) African Immigrant Health. 4/4/09.
Venters H, Dasch-Goldberg D, Rasmussen A, Keller AS, Human Rights Quarterly (2009) Into the Abyss: Mortality and Morbidity among Detained Immigrant. 31 (2) 474-491.
Venters H, The Lancet (2008) Who is Jack Bauer? 372 (9653).
Venters H, Lainer-Vos J, Razvi A, Crawford J, Shaf’on Venable P, Drucker EM, Am J Public Health (2008) Bringing Health Care Advocacy to a Public Defender’s Office. 98 (11).
Venters H, Razvi AM, Tobia MS, Drucker E. Harm Reduct J. (2006) The case of Scott Ortiz: a clash between criminal justice and public health. Harm Reduct J. 3:21
Cloez-Tayarani I, Petit-Bertron AF, Venters HD, Cavaillon JM (2003) Internat. Immunol. Differential effect of serotonin on cytokine production in lipopolysaccharide-stimulated human peripheral blood mononuclear cells.15,1-8.
Strle K, Zhou JH, Broussard SR, Venters HD, Johnson RW, Freund GG, Dantzer R, Kelley KW, (2002) J. Neuroimmunol. IL-10 promotes survival of microglia without activating Akt. 122, 9-19.
Venters HD, Broussard SR, Zhou JH, Bluthe RM, Freund GG, Johnson RW, Dantzer R, Kelley KW, (2001) J. Neuroimmunol. Tumor necrosis factor(alpha) and insulin-like growth factor-I in the brain: is the whole greater than the sum of its parts? 119, 151-65.
Venters HD, Dantzer R, Kelley KW, (2000) Ann. N. Y. Acad. Sci. Tumor necrosis factor-alpha induces neuronal death by silencing survival signals generated by the type I insulin-like growth factor receptor. 917, 210-20.
Venters HD, Dantzer R, Kelley KW, (2000) Trends. Neurosci. A new concept in neurodegeneration: TNFalpha is a silencer of survival signals. 23, 175-80.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Bonilla LE, Jensen T, Garner HP, Bordayo EZ, Najarian MM, Ala TA, Mason RP, Frey WH 2nd, (1997) Heme from Alzheimer's brain inhibits muscarinic receptor binding via thiyl radical generation. Brain. Res. 764, 93-100.

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Kjome JR, Swenson KA, Johnson MN, Bordayo EZ, Anderson LE, Klevan LC, Fraticelli AI, Aldrich SL, Fawcett JR, Venters HD, Ala TA, Frey WH 2nd (1997) Inhibition of antagonist and agonist binding to the human brain muscarinic receptor by arachidonic acid. J. Mol. Neurosci. 10, 209-217.
Honors and Presentations (past 10 years)
Keynote Address, Academic Correctional Health Conference, April 2020, Chapel Hill, North Carolina.
TedMed Presentation, Correctional Health, Boston MA, March 2020.
Finalist, Prose Award for Literature, Social Sciences category for Life and Death in Rikers Island, February, 2020.
Keynote Address, John Howard Association Annual Benefit, November 2019, Chicago IL.
Keynote Address, Kentucky Data Forum, Foundation for a Healthy Kentucky, November 2019, Cincinnati Ohio.
Oral Presentation, Dual loyalty and other human rights concerns for physicians in jails an prisons. Association of Correctional Physicians, Annual meeting. 10/16, Las Vegas.
Oral Presentation, Clinical Alternatives to Punitive Segregation: Reducing self-harm for incarcerated patients with mental illness. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Analysis of Deaths in ICE Custody over 10 Years . American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Medication Assisted Therapies for Opioid Dependence in the New York City Jail System. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, November 2014, New Orleans, LA.
Training, International Committee of the Red Cross and Red Crescent, Medical Director meeting 10/15, Presentation on Human Rights and dual loyalty in correctional health.
Paper of the Year, American Public Health Association. 2014. (Kaba F, Lewis A, GlowaKollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.)
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Oral Presentation, Human rights at Rikers: Dual loyalty among jail health staff. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Poster Presentation, Mental Health Training for Immigration Judges. American Public Health

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Association Annual Meeting, New Orleans LA, 2014.
Distinguished Service Award; Managerial Excellence. Division of Health Care Access and Improvement, NYC DOHMH. 2013.
Oral Presentation, Solitary confinement in the ICE detention system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Self-harm and solitary confinement in the NYC jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Implementing a human rights practice of medicine inside New York City jails. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Human Rights on Rikers: integrating a human rights-based framework for healthcare into NYC’s jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Improving correctional health care: health information exchange and the affordable care act. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Management of Infectious Disease Outbreaks in a Large Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Diversion of Patients from Court Ordered Mental Health Treatment to Immigration Detention. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Initiation of Antiretroviral Therapy for Newly Diagnosed HIV Patients in the NYC Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Medical Case Management in Jail Mental Health Units. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Injury Surveillance in New York City Jails. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Ensuring Adequate Medical Care for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Denver, CO, 2010.
Oral Presentation, HIV Testing in NYC Correctional Facilities. Venters H and Jaffer M, American Public Health Association, Annual Meeting, Denver, CO, 2010.
Oral Presentation, Medical Concerns for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Growth of Immigration Detention Around the Globe. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Role of Hospital Ethics Boards in the Care of Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA,

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November 2009.
Oral Presentation, Health Law and Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Bro Bono Advocacy Award, Advocacy on behalf of detained immigrants. Legal Aid Society of New York, October 2009.
Oral Presentation, Deaths of immigrants detained by Immigration and Customs Enforcement. Venters H, Rasmussen A, Keller A, American Public Health Association Annual Meeting, San Diego CA, October 2008.
Poster Presentation, Death of a detained immigrant with AIDS after withholding of prophylactic Dapsone. Venters H, Rasmussen A, Keller A, Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Poster Presentation, Tuberculosis screening among immigrants in New York City reveals higher rates of positive tuberculosis tests and less health insurance among African immigrants. Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Daniel Leicht Award for Achievement in Social Medicine, Montefiore Medical Center, Department of Family and Social Medicine, 2007.
Poster Presentation, Case Findings of Recent Arestees. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Toronto Canada, April 2007.
Poster Presentation, Bringing Primary Care to Legal Aid in the Bronx. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Los Angeles CA, April 2006.
Poster Presentation, A Missed Opportunity, Diagnosing Multiple Myeloma in the Elderly Hospital Patient. Venters H, Green E., Society of General Internal Medicine Annual Meeting, New Orleans LA, April 2005.
Grants: Program
San Diego County: Review of jail best practices (COCHS), 1/2020, $90,000.
Ryan White Part A - Prison Release Services (PRS). From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/17 (Renewed since 2007). Annual budget $ 2.7 million.
Ryan White Part A - Early Intervention Services- Priority Population Testing. From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/18 (Renewed since 2013). Annual budget $250,000.
Comprehensive HIV Prevention. From HHS to Correctional Health Services (NYC DOHMH), 1/1/1612/31/16. Annual budget $500,000.
HIV/AIDS Initiative for Minority Men. From HHS Office of Minority Health to Correctional Health Services (NYC DOHMH), 9/30/14-8/31/17. Annual budget $375,000.

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SPNS Workforce Initiative, From HRSA SPNS to Correctional Health Services (NYC DOHMH), 8/1/147/31/18. Annual budget $280,000.
SPNS Culturally Appropriate Interventions. From HRSA SPNS to Correctional Health Services (NYC DOHMH), 9/1/13-8/31/18. Annual budget $290,000.
Residential substance abuse treatment. From New York State Division of Criminal Justice Services to Correctional Health Services (NYC DOHMH), 1/1/11-12/31/17. Annual budget $175,000.
Community Action for Pre-Natal Care (CAPC). From NY State Department of Health AIDS Institute to Correctional Health Services (NYC DOHMH), 1/1/05-12/31/10. Annual budget $290,000.
Point of Service Testing. From MAC/AIDS, Elton John and Robin Hood Foundations to Correctional Health Services (NYC DOHMH), 11/1/09-10/31/12. Annual budget $100,000.
Mental Health Collaboration Grant. From USDOJ to Correctional Health Services (NYC DOHMH), 1/1/11-9/30/13. Annual budget $250,000.
Teaching
Instructor, Health in Prisons Course, Bloomberg School of Public Health, Johns Hopkins University, June 2015, June 2014, April 2019.
Instructor, Albert Einstein College of Medicine/Montefiore Social Medicine Program Yearly lectures on Data-driven human rights, 2007-present.
Other Health & Human Rights Activities
DIGNITY Danish Institute Against Torture, Symposium with Egyptian correctional health staff regarding dual loyalty and data-driven human rights. Cairo Egypt, September 20-23, 2014.
Doctors of the World, Physician evaluating survivors of torture, writing affidavits for asylum hearings, with testimony as needed, 7/05-11/18.
United States Peace Corps, Guinea Worm Educator, Togo West Africa, June 1990- December 1991.
-Primary Project; Draconculiasis Eradication. Activities included assessing levels of infection in 8 rural villages and giving prevention presentations to mothers in Ewe and French -Secondary Project; Malaria Prevention.
Books
Venters H. Life and Death in Rikers Island. Johns Hopkins University Press. 2/19.
Chapters in Books
Venters H. Mythbusting Solitary Confinement in Jail. In Solitary Confinement Effects, Practices, and Pathways toward Reform. Oxford University Press, 2020.

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MacDonald R. and Venters H. Correctional Health and Decarceration. In Decarceration. Ernest Drucker, New Press, 2017.

Membership in Professional Organizations
American Public Health Association

French Ewe

Proficient Conversant

Foreign Language Proficiency

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Prior Testimony and Deposition
Benjamin v. Horn, 75 Civ. 3073 (HB) (S.D.N.Y.) as expert for defendants, 2015 Rodgers v. Martin 2:16-cv-00216 (U.S.D.C. N.D.Tx) as expert for plaintiffs, 10/19/17 Fikes v. Abernathy, 2017 7:16-cv-00843-LSC (U.S.D.C. N.D.AL) as expert for plaintiffs 10/30/17. Fernandez v. City of New York, 17-CV-02431 (GHW)(SN) (S.D.NY) as defendant in role as City Employee 4/10/18. Charleston v. Corizon Health INC, 17-3039 (U.S.D.C. E.D. PA) as expert for plaintiffs 4/20/18. Gambler v. Santa Fe County, 1:17-cv-00617 (WJ/KK) as expert for plaintiffs 7/23/18. Hammonds v. Dekalb County AL, CASE NO.: 4:16-cv-01558-KOB as expert for plaintiffs 11/30/2018. Mathiason v. Rio Arriba County NM, No. D-117-CV-2007-00054, as expert for plaintiff 2/7/19. Hutchinson v. Bates et. al. AL, No. 2:17-CV-00185-WKW- GMB, as expert for plaintiff 3/27/19. Lewis v. East Baton Rouge Parish Prison LA, No. 3:16-CV-352-JWD-RLB, as expert for plaintiff 6/24/19. Belcher v. Lopinto, No No. 2:2018cv07368 - Document 36 (E.D. La. 2019) as expert for plaintiffs 12/5/2019.
Fee Schedule
Case review, reports, testimony $500/hour. Site visits and other travel, $2,500 per day (not including travel costs).

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Exhibit B

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Immigration and Customs Enforcement Washington, DC 20536
Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19)
ICE Health Service Corps (IHSC) Version 6.0, March 6, 2020
WHAT’S NEW Version 6.0
• Information added to convey that revised CDC guidance expands testing to a wider group of symptomatic patients. Providers should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested. Decisions on which patients receive testing should be based on the epidemiology of COVID-19, as well as the clinical course of illness. Providers are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza.
• Information added to covey that testing is now available through LabCorp and other commercial laboratories.
Version 5.1 • Information added to emphasize that medical staff should educate detainees to include hygiene, covering coughs, and requesting sick call if ill. • Add a link to Illness Prevention and Patient Education resources in multiple languages on SharePoint, including signage. • Added a link to COVID-19 Questions and Responses on SharePoint for submitting questions, receiving responses from IHSC subject matter experts, and viewing all questions and responses. • Added a link to a 2019 Novel Coronavirus Resource Page on SharePoint.
Version 5.0 • Updates have been made for screening to identify detainees with revised CDC criteria for epidemiologic risk of COVID-19 exposure and to specify the start of the 14-day monitoring period from the date of initial DHS apprehension. • Epidemiologic travel risk now includes travel from or through geographic areas with widespread or sustained community transmission.

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Situation Summary
The CDC is closely monitoring an outbreak caused by a novel (new) coronavirus (COVID-19). The situation is evolving and expanding with community transmission occurring in multiple countries. For the most current information, check the CDC information pages at https://www.cdc.gov/coronavirus/2019-ncov/index.html frequently for updates.
CDC interim guidance for health care professionals, including clinical criteria, is available at https://www.cdc.gov/coronavirus/2019-nCoV/clinical-criteria.html.
ICE Health Service Corps Recommendations
Note: recommendations will be updated if and as necessary to address the evolving public health situation.
1. During intake medical screening: a. Ask all detainees if they have had close contact1 with a person with laboratoryconfirmed COVID-19 in the past 14 days b. Ask all detainees what countries they have traveled from or through in the past two weeks i. Check whether these countries include geographic area(s) with widespread or sustained community transmission.* ii. *Please see CDC website listing of geographic area(s) with widespread or sustained community transmission at https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-criteria.html. iii. If the detainee responded yes to 1a and/or the detainee traveled from or through geographic area(s) with widespread or sustained community transmission* in the past 14 days (1b), assess for fever and symptoms of respiratory illness. a. If the detainee has a fever and/or symptoms of respiratory illness, refer to #4 ISOLATION below. b. If the detainee does not have fever or respiratory illness, refer to #2 MONITORING, below. c. For IHSC-staffed medical clinics, add a Global Alert / Medical Alert in the electronic health record that states, “Epidemiologic risk of possible COVID-19 exposure. The last reported date of possible exposure was mm/dd/yyyy.”” Click here for the eCW guide for adding a Global Alert. c. If the detainee has fever and/or symptoms or respiratory illness and has not traveled from or through area(s) with sustained community transmission* in the past 14 days and if they have not had close contact1 with a person with laboratory-confirmed COVID-19 or their respiratory secretions in the past 14 days → refer to a medical provider (see #3 ENCOUNTER below).
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d. Educate all detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. i. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page.
2. MONITORING of detainees with exposure risk who do not present with fever or symptoms: a. See also IHSC Interim COVID-19 Risk Assessment on the 2019 Novel Coronavirus Resource Page. b. For detainees with travel history from or through geographic area(s) with sustained community transmission* in the past 14 days and/or detainees who have had close contact1 with a person with laboratory-confirmed COVID-19 in the past 14 days who do not present with fever or symptoms of respiratory illness → monitor for 14 days after initial DHS apprehension and observe daily for fever and/or symptoms of respiratory illness. i. *Please see CDC website listing of international area(s) with sustained transmission at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalcriteria.html. c. House detainees under monitoring in a single cell room if available or as a cohort for 14 days after initial DHS apprehension. d. Refer also to appendix A, Intake Screening Questions and Intake Screening and Early Management Algorithm on the 2019 Novel Coronavirus Resource Page. e. If detainee is housed in a facility without IHSC medical staffing, medical staff should notify their assigned IHSC Field Medical Coordinator. f. Request a medical alert in following usual protocols stating that “the detainee is under observation through mm/dd/yyyy due to recent travel from or through geographic area(s) with widespread or sustained community transmission” Release the medical alert at the completion of the 14-day monitoring period. g. During the 14-day monitoring period, if an asymptomatic detainee under monitoring must be released in the U.S., notify the local health department and provide information on the detainee including the intended address and telephone number of the detainee’s intended destination. h. Document any asymptomatic detainee under monitoring on the Lower Respiratory Illness Tracking Tool. i. For monitoring of asymptomatic detainees, it is not necessary to contact the local health department.
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3. ENCOUNTER. During sick call, health assessment, or other clinical encounter in which a detainee presents with or complains of fever and/or respiratory illness, or is observed with signs of fever and/or respiratory illness: a. Ask all detainees what countries they have traveled from or through in the past two weeks. i. Check whether these countries include international area(s) with sustained transmission.* ii. *Please see CDC website listing of international area(s) with sustained transmission at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalcriteria.html. b. If the detainee has traveled from or through area(s) with sustained community transmission*in the past 14 days, or if they have had close contact1 with a person with laboratory-confirmed COVID-19 or their respiratory secretions in the past 14 days i. → refer to #4 ISOLATION below. c. If the detainee has not traveled from or through area(s) with sustained community transmission* in the past 14 days and if they have not had close contact1 with a person with laboratory-confirmed COVID-19 or their respiratory secretions in the past 14 days then i. → Providers should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested. Decisions on which patients receive testing should be based on the epidemiology of COVID-19, as well as the clinical course of illness. Providers are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza. ii. See #5 SPECIMEN COLLECTION AND LABORATORY TESTING below. d. Educate detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. i. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page.
4. ISOLATION and management of detainees with fever and/or symptoms of respiratory illness and who have traveled from or through geographic area(s) with widespread or sustained community transmission at in the past 14 days or have had close contact1 with a person with laboratory-confirmed COVID-19 or their respiratory secretions in the past 14 days: a. See IHSC Interim COVID-19 Risk Assessment on the 2019 Novel Coronavirus Resource Page. b. Place a tight-fitting surgical mask on the detainee. c. Promptly consult with a medical provider, preferably the Clinical Director or designee.
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d. Place the detainee in a private medical housing room, ideally in an airborne infection isolation room if available. If no single occupancy medical housing unit room is available, placement in other areas of the facility may be utilized to house the ill detainee separately from the general detention population.
e. Implement strict hand hygiene and standard, airborne and contact precautions, including use of eye protection. i. Increase hand hygiene and routine cleaning of surfaces. ii. Appropriate personal protective equipment includes gloves, gowns, N95 respirators, and goggles or face shields.
f. Call the local and/or state health department for notification and guidance. g. Laboratory testing for COVID-19 is now available through commercial laboratories
including LabCorp and through local and/or state health departments. i. See #5 SPECIMEN COLLECTION AND LABORTORY TESTING below. h. If the detainee has underlying illness or is acutely ill, or symptoms do not resolve, consult with the Regional Clinical Director, and/or Infectious Disease program. i. If the detainee is referred to a local hospital, call the hospital in advance to notify of the recent relevant travel history and respiratory symptoms and to coordinate how manage the detainee safely. j. Promptly notify the facility’s staff responsible for infection prevention and control (e.g., in IHSC facilities, notify the Infection Prevention Officer, or the Facility Healthcare Program Manager (if the facility does not have an Infection Prevention Officer position); if the Infection Prevention Officer or Facility Healthcare Program Manager is not available, IHSC staff should notify the Infection Prevention Group at #IHSC_PHSP_IPO@ice.dhs.gov. k. Facilities without IHSC medical staffing should notify their assigned Field Medical Coordinator. l. IHSC Infection Prevention Officers, Facility Healthcare Program Managers, Field Medical Coordinators, or designees should notify the Regional Infection Prevention Supervisory Nurse immediately. m. Detainees isolated for respiratory illness and who have epidemiologic risk for COVID-19 exposure should wear a tight-fitting surgical mask when outside of the room under airborne and contact precautions. n. Document any ill detainee who is suspected of having COVID-19 on the Lower Respiratory Illness Tracking Tool. o. The contagious period for COVID-19 is still undetermined. i. If the detainee tests positive for COVID-19 and fever and symptoms have
resolved, consult with the Infectious Disease Program and/or local health department regarding appropriate release from isolation. ii. If the detainee tests negative for COVID-19, had high or medium exposure risk, and fever and symptoms have resolved, release from isolation after completion of the 14-day monitoring period after initial DHS apprehension.
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iii. See also IHSC Interim COVID-19 Risk Assessment on the 2019 Novel Coronavirus Resource Page.
iv. If the detainee tests negative for COVID-19 and fever and/or symptoms persist, consult with the Regional Clinical Director and/or Infectious Disease Program
p. Educate detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. i. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page.
5. SPECIMEN COLLECTION AND LABORATORY TESTING for COVID-19 a. Laboratory testing for COVID-19 is available through commercial laboratories including LabCorp and through local and/or state health departments. b. See Specimen Collection instructions on the 2019 Novel Coronavirus Resource Page. i. LabCorp ordering codes are 2019 Novel Coronavirus (COVID-19), NAA; TEST: 139900.
6. Infectious disease public health actions: a. Educate detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. i. Illness Prevention and Patient Education resources in multiple languages are available on SharePoint. b. See also 05-06-G-02 Infectious Disease Public Health Actions Guide: Isolation and Management of Detainees Exposed to Infectious Organisms. c. Known exposure to a person with confirmed COVID-19 i. Implement cohorting with restricted movement for detainees housed with the ill detainee or who have been in close contact1 with the ill detainee for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee). ii. Monitor cohorted detainees daily to observe for fever and symptoms of respiratory illness. iii. Refer exposed detainees with new onset fever and/or respiratory illness to a medical provider for evaluation. iv. Discontinue cohorting when 14-day incubation period completes with no new cases. d. Exposure to a person with fever or symptoms being evaluated or under investigation for COVID-19 but not confirmed to have COVID-19 i. Implement cohorting with restricted movement for detainees housed with the ill detainee or who have been in close contact1 with the ill detainee for the duration of the most recent incubation period.
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ii. Monitor cohorted detainees daily to observe for fever and symptoms of respiratory illness.
iii. Refer exposed detainees with new onset fever and/or respiratory illness to a medical provider for evaluation.
iv. If the index patient is subsequently confirmed to have COVID-19, see section 5.b above.
v. Discontinue cohorting if the index patient receives an alternate diagnosis that excludes COVID-19.
vi. Any of the cohorted detainees with exposure risk should complete their initial 14day monitoring period (i.e., for asymptomatic monitoring).
e. Report cohorting through routine IHSC cohort reporting protocols. f. Document any asymptomatic and afebrile detainees under monitoring for COVID-19
on the Lower Respiratory Illness Tracking Tool. g. Recommend to Field Office Director or designee that detainees cohorted due to high
or medium exposure risk or known exposure to an ill person not be transferred or transported. i. See IHSC Interim COVID-19 Risk Assessment on the 2019 Novel Coronavirus
Resource Page. h. If a cohorted detainee must be released in the U.S., notify the local health department
including the intended address and telephone numbers of the detainee’s intended destination.
1Close contact is defined as: a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case – or – b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on)
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Resources and references
• 2019 Novel Coronavirus Resource Page on SharePoint
• Illness Prevention and Patient Education resources in multiple languages are available on SharePoint.
• COVID-19 Questions and Responses on SharePoint for submitting questions, receiving responses from IHSC subject matter experts, and viewing all questions and responses

IHSC Official Guidance

Guidance number Guidance name

Type

05-02

Occupational Health Directive

Policy

05-02 G-04 05-02 G-1 05-02 G-2 05-02-G-03

Occupational Health Guide: Workforce Health

Guide

Occupational Health Guide: Bloodborne Potentially Infectious Materials

Pathogens

and

Other

Guide

Occupational Health Guide: Personal Protective Equipment Program

Guide

Occupational Health Guide: Respiratory Protection Program Guide

05-04

Environmental Health Directive

Policy

05-04 G-01

IHSC Environmental Health Guide

Guide

05-06 05-06 G-01 05-06 G-02 05-06 G-03

Infectious Disease Public Health Actions Directive

Policy

Infectious Disease Public Health Actions Guide: Contact and Outbreak Investigation Guide

Guide

Infectious Disease Public Health Actions Guide: Management of Detainees Exposed to Infectious

Isolation and Organisms

Guide

Infectious Disease Public Health Actions Guide: Surveillance and Reporting

Guide

• Infection Control: Novel Coronavirus 2019 (COVID-19) | CDC • Interim Guidance: Healthcare Professionals 2019-nCoV | CDC (including CDC
website listing of geographic area(s) with widespread or sustained community transmission • CDC | Coronavirus Disease 2019 (COVID-19) • 2019 Novel Coronavirus (2019-nCoV) | TDSHS • nCOV2019 | CDPH • Novel Coronavirus Outbreak 2020 | Washington State Department of Health
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• ADHS - Highlighted Infectious Diseases for Arizona - Coronavirus Disease 2019 (COVID-19)
• Coronavirus | NYC Health • 2019 Novel (New) Coronavirus | NYDOH • 2019 Novel Coronavirus (2019-nCoV) | Florida Department of Health • NJ Department of Health | Communicable Disease Service | COVID-2019 (Novel
Coronavirus) • Pennsylvania Department of Health | Coronavirus • 2019 Novel Coronavirus (2019 nCoV) | Frequently Asked Questions | IDPH Points of contact for questions • IHSC Staff: COVID-19 Questions and Responses on SharePoint for submitting
questions, receiving responses from IHSC subject matter experts, and viewing all questions and responses  Regional Infection Prevention Supervisory Nurses, PHSP Unit Senior Public Health
Analyst, PHSP Unit Chief • Facilities without IHSC Medical Staffing: Assigned Field Medical Coordinators • Public health agencies: IHSC_InfectionPrevention@ice.dhs.gov
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Appendix A: Intake Screening Questions Updated February 28, 2020
1. Have you been in close contact with a person with laboratory-confirmed 2019 novel coronavirus or their respiratory secretions in the past 14 days?  Last date you had contact with that person: mm/dd/yyyy OR
2. What countries have you traveled from or through in the past two weeks?  Check whether the detainee traveled from or through geographic area(s) with widespread or sustained community transmission*in the past 14 days?  *Please see CDC website listing of geographic area(s) with widespread or sustained community transmission at https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-criteria.html
3. If yes to #1 or the detainee traveled from or through geographic area(s) with widespread or sustained community transmission*in the past 14 days? (#2):  Have you had fever and/or respiratory illness with onset in the past 14 days?  If yes, what date did you first notice symptoms?: mm/dd/yyyy  If yes, implement standard, airborne, and contact precautions including eye protection, isolate and refer to a medical provider, add Medical Hold, notify FHPM, IPO, or designee.  If no, implement MONITORING; house in single room (preferred) if available, implement daily checks for 14 days after initial DHS apprehension, add Medical Hold, notify FHPM, IPO, or designee.
4. If no travel from or through geographic area(s) with widespread or sustained community transmission* in the past 14 days AND no close contact with a person with laboratoryconfirmed 2019 novel coronavirus or their respiratory secretions in the past 14 days?  *Please see CDC website listing of international area(s) with sustained transmission at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html  Routine intake  If the initial DHS apprehension date (i.e., initial CBP or ICE encounter) documented in ENFORCE is ≥ 14 days prior, the detainee is outside the 14 day window and does not require monitoring for the epidemiologic risk of COVID-19 exposure  Facility Infection Prevention Officers and/or PHSP Unit staff can help confirm the date of initial DHS apprehension in ENFORCE
*Please see CDC website listing of international area(s) with sustained transmission at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html
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Exhibit C

Case 5:20-cv-10829-JEL-APP ECF No. 77 filed 05/15/20 PageID.2278 Page 49 of 77

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Exhibit D

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

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

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Exhibit E

Case 5:20-cv-10829-JEL-APP ECF No. 77 filed 05/15/20 PageID.2289 Page 60 of 77

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Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

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

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

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

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

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

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

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

ALL FACILITIES HOUSING ICE DETAINEES

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

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

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

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

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

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

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

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

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

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

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

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

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

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ATTACHMENT LETTER A B C D
E
F
G
H
I

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

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J

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

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

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

K

Assistant Director Peter Berg, Enforcement and Removal

Operations, Updated Guidance: COVID-19 Detained Docket Review

(Apr. 4, 2020).

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Case 5:20-cv-10829-JEL-APP ECF No. 4747-71 filed 045/2165/20 PageID.12237007 Page 1 of 8
DECLARATION OF HEATHER GARVOCK, ESQ. REGARDING QAID AHMED ALHALMI
I, Heather Garvock, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Heather Garvock. I make these statements based upon my personal knowledge after having spoken with my client and reviewing his immigration records.
2. I am an attorney with Ellis Porter, PLC. I represent Qaid Ahmed Alhalmi, a 58-year-old Yemeni national who has been in civil immigration detention at Calhoun County Correctional Facility (“Calhoun”) since September 2019 based on an old final removal order, which I describe further below. I began representing Mr. Alhalmi on March 23, 2020 and have spoken to him anywhere between one and four times per week via phone and video visitation over the past month.
3. In my conversations with Mr. Alhami, and my review of his immigration file, I have learned the following: a. Mr. Alhalmi entered the United States twice, first on May 29, 1992 as a nonimmigrant visitor, and then on July 27, 1995, also as a nonimmigrant visitor. He has remained in the United States ever since. b. Mr. Alhalmi has a history of serious medical conditions:

Case 5:20-cv-10829-JEL-APP ECF No. 4747-71 filed 045/2165/20 PageID.12237018 Page 2 of 8
i. Mr. Alhalmi ii. Mr. Alhalmi
iii. For the last three weeks, Mr. Alhalmi
Mr. Alhalmi’s son-in-law, also a physician, shared his concerns with a Calhoun staff member who denied his request and claimed that Calhoun
2

Case 5:20-cv-10829-JEL-APP ECF No. 4747-71 filed 045/2165/20 PageID.12237029 Page 3 of 8

would determine what testing Mr. Alhalmi should receive.

Mr. Alhalmi

has not

received further testing or even seen a doctor.

iv. U.S. Immigration and Customs Enforcement (“ICE”) is

aware of Mr. Alhalmi’s medical conditions. During his

initial health screening, Calhoun learned that

v. Because of his pre-existing medical conditions, Mr.

Alhalmi is very worried about his risk of being infected

with COVID-19 at Calhoun. Additionally, based on the

experience

he fears

that if he is infected he will not receive adequate testing

and care to ensure that he does not experience the most

severe symptoms of the disease.

4. Throughout the course of my representation of Mr. Alhalmi, I have also

learned the following about conditions in Calhoun:

a. Mr. Alhalmi is housed in a small, which he estimates to be

approximately seven by five feet cell, with one other detainee.

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Mr. Alhalmi’s cell contains a bunk bed, toilet, sink, and bar of soap, all of which he shares with his cellmate. b. Mr. Alhalmi’s cell is located in Pod B, which contains approximately 58 detainees and includes detainees serving criminal sentences. There are no windows in the Pod. All detainees in Pod B share four showers that are cleaned once a week. They also share two common bathrooms. The bathrooms contain sinks, but there is often no soap available for handwashing. The detainees do not have access to hand sanitizer. c. Detainees are constantly moved in and out of Mr. Alhalmi’s small cell. He has shared a cell with five different cellmates in the last two weeks. The cells are not cleaned before new cellmates arrive or after old cellmates leave. d. Calhoun does not provide detainees with gloves or masks. Mr. Alhalmi has only seen medical caretakers wearing masks. However, Mr. Alhalmi saw a maskless nurse caring for another inmate, while Mr. Alhalmi was waiting to be seen in the medical area.
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e. At least seven detainees housed in the same Pod as Mr. Alhalmi are exhibiting symptoms consistent with COVID-19, including a cough and sore throat. Mr. Alhalmi does not believe that they have been tested for the virus, despite having requested testing.
f. Detainees in Pod A may have contracted COVID-19. Mr. Alhalmi was transferred from Pod A to Pod B approximately two weeks ago, and was told by Deputy Green, a male deputy for the Calhoun County Sheriff’s Department, that the transfer was due to recent cases of “disease” in Pod A.
g. Detainees are unable to effectively practice social distancing by remaining six feet apart. At least four times per day all detainees are locked down and must stand next to each other by their bunk beds. While detainees eat, they all sit within arm’s reach of one another. Calhoun staff have not discussed social distancing with the detainees, who continue to trade and share food with one another and generally remain in close proximity to one another.
h. While on video calls with my client, I have observed detainees milling around my client, frequently standing close enough to touch one another, and at times passing within a few feet of my client as he speaks to me on the phone.
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5. Mr. Alhalmi was detained on or around September 17, 2019, during one of his standard Order of Supervision appointments. Mr. Alhalmi had been living in the community and complied with his order of supervision for 17 years without any issues since receiving a final removal order in 2002.
6. Mr. Alhalmi has never been convicted of a felony in the United States. In 2009, in Louisiana, he was charged with obscenity for failing to request a minor’s identification when selling a pornographic video as a video store clerk. However, the charge was dismissed after he completed classes through the District Attorney’s Diversion Program.
7. Mr. Alhalmi’s final order of removal to Yemen was issued on August 8, 2002, in Detroit, Michigan. The Board of Immigration Appeals (“BIA”) dismissed his appeal on December 15, 2003. On February 27, 2020, the BIA denied his Motion to Reopen. Mr. Alhalmi filed a Motion to Reconsider with the Board of Immigration Appeals on March 27, 2020,which is currently pending with the BIA. He has also filed an appeal of the BIA’s dismissal with the Sixth Circuit.
8. I believe Mr. Alhalmi has not been removed, despite his order of removal, due to the ongoing civil war in Yemen which has made it difficult, if not impossible, to remove individuals to Yemen.
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9. Before being detained, Mr. Alhalmi lived in Michigan with his wife of thirteen years. He has six children, three of whom are in the United States. Of his children in the United States, two are U.S. citizens, and the third is a lawful permanent resident. Prior to being detained, Mr. Alhalmi worked as a businessman, owning convenience stores in the Louisiana and Michigan areas.
10. If released, Mr. Alhalmi will live in his home in Dearborn, Michigan. At his home, Mr. Alhalmi will be able to get medical treatment for his pre-existing medical conditions while maintaining a safe distance from others and quarantining as necessary. Mr. Alhalmi is willing to comply with conditions of release like check-ins, as he did prior to being detained. His wife, Kelly Saleh, who is a U.S. citizen, would be able to pick him up from Calhoun.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
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Executed on the 26th day of April 2020. /s/ Heather Garvock Heather Garvock, Esq. Ellis Porter, PLC 2211 Old Earhart Road, Suite 160 Ann Arbor, MI 48105
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DECLARATION OF RICHARD KESSLER I, Richard Kessler, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Richard Kessler. I make these statements based upon my personal knowledge.
2. I am an immigration attorney. I have practiced immigration law for over 38 years.
3. I represent Tomas Cardona Ramirez, a 38 year-old Guatemalan national, who has been detained in the Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan since February 2020.
4. Mr. Cardona Ramirez came to the United States in 2004. The Detroit Immigration Court granted voluntary departure on April 24, 2020.
5. Mr. Cardona Ramirez is worried about exposure to COVID-19 due to a number of serious, pre-existing medical issues. a. Mr. Cardona Ramirez
and has continued to receive treatment while detained at Calhoun. b. Mr. Cardona Ramirez
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6. I last spoke with Mr. Cardona Ramirez on April 24, 2020. Through the course of my representation of Mr. Cardona Ramirez and other detainees in the same unit at Calhoun, I have also learned the following about conditions in Calhoun: a. Mr. Cardona Ramirez is housed in the B-unit. His unit has around 60 detainees who sleep in 27 two-person cells on two floors. The first floor has a common area where they eat their meals and spend most of their times. There are small tables with four seats each, which are about one to two feet apart. When the detainees are allowed to go outside, all 60 detainees go at the same time They are not able to stay six feet apart. As a result, it is impossible to practice adequate social distancing at Calhoun at all times. b. Inmates receive a small amount of soap for free, but have to purchase additional soap if they run out. The detainees have not been given gloves, masks or hand sanitizer. The staff
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provides two bottles of disinfectant spray each day for the full unit of about 60 detainees. The detainees frequently run out before everyone is able to clean their cells, and additional cleaning product is typically not provided. c. Some guards wear masks and gloves, but not all. The next unit over, Unit A, is a quarantine unit. The detainees believe staff members go in and out of Units A and B. d. There are no windows in the dormitory and there is no natural light. e. Detainees do not have access to tests for COVID-19. At least two detainees, who had trouble breathing and had chest pain, were not tested. Both were returned to the unit after their medical appointments. 7. If released, Mr. Cardona Ramirez will stay with his significant other and their children in Grand Rapids, Michigan. His significant other would be able to arrange to pick him up at Calhoun. Mr. Cardona Ramirez would maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions.
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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 26th day of April 2020, in Grand Rapids, Michigan. /s/ Richard Kessler Richard Kessler Law Office of Richard Kessler, P.C. 4145 Kalamazoo Ave SE Grand Rapids, MI 49508
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CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..4747--130 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.1321895 PPaaggee11ooff33
DECLARATION OF JOSEPH S. HUGHES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER I, Joseph S. Hughes, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Joseph S. Hughes. I make these statements based upon my personal knowledge after having spoken with my client, Damary Rodriguez Salabarria.
2. I am an attorney with the Law Office of Joseph S. Hughes, a firm specializing in immigration matters. I have practiced immigration law for approximately 26 years.
3. I represent Damary Rodriguez Salabarria, a 46 year-old Cuban national presently detained at Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan, where she has been held since August 10, 2019.
4. Ms. Rodriguez Salabarria entered the United States on August 1, 2019. Immigration and Customs Enforcement (“ICE”) first detained her in McAllen, Texas, and subsequently transferred her to Calhoun on August 10, 2019. Upon her entry, she sought out Customs and Border Protection agents to request asylum, and passed a credible fear interview shortly thereafter.
5. Ms. Rodriguez Salabarria was ordered released on a $40,000 bond, but remains in custody because of her inability to pay. Her husband, Juan Agete Perez, was also granted bond and is currently living in Baytown, Texas.
6. Ms. Rodriguez Salabarria represented herself pro se before the Detroit Immigration Court. After her asylum claim was denied, I represented her in her appeal to the Board of Immigration Appeals (“BIA”). The BIA dismissed her appeal approximately two weeks ago. I have prepared and intend to file in the coming weeks a petition for review to the Sixth Circuit Court of Appeals.
7. Ms. Rodriguez Salabarria is worried about exposure to COVID-19 due to a number of serious, pre-existing medical issues.
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a. Ms. Rodriguez Salabarria
b. Prior to entering the United States, Ms. Rodriguez Salabarria
Ms. Rodriguez Salabarria fears that her pre-existing medical conditions would significantly raise her chances of serious injury or death if she is infected with COVID-19. 8. I last spoke with Ms. Rodriguez Salabarria on April 24, 2020. Ms. Rodriguez Salabarria reports that correctional staff do not wear masks or gloves, nor are inmates given access to masks or gloves. Soap is not consistently provided, so inmates are sometimes required to buy their own. While there are sinks provided in the bathrooms, inmates are not always given enough time to properly wash up. Ms. Rodriguez Salabarria reports that other inmates appear to be ill. The only information she has been given about the coronavirus and COVID-19 was a presentation by a nurse approximately two months ago. However, the nurse presented in English and Ms. Rodriguez Salabarrria speaks and understands only Spanish. 9. No one in Calhoun is able to practice social distancing. Ms. Rodriguez Salabarria shares a cell with five other inmates. These inmates change frequently: Ms. Rodriguez Salabarria has shared a cell with ten different inmates in the previous two weeks. The cell contains four twin-sized bunkbeds. As a result, she is not able to maintain six feet of distance between herself and other inmates. Correctional staff serve meals to the inmates, but do not wear masks or gloves while doing so. Inmates continue to eat communally at tables of four to eight people. Tables are cleaned only after the inmates have eaten.
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10.If Ms. Rodriguez Salabarria is released, volunteers from the Washtenaw Interfaith Coalition for Immigrant Rights would pick her up from Calhoun and facilitate transportation to Baytown, Texas, where she can rejoin her husband. In Texas, Ms. Rodriguez Salabarria will have a support network that can help her access any needed medical care. She will be able to practice social distancing and/or quarantine, if necessary.
11.Ms. Rodriguez Salabarria has informed me that she is willing to abide by any conditions set for her release, including home confinement and/or wearing an ankle monitor.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 26th day of April 2020, in Berrien Springs, Michigan.
/s/ Joseph S. Hughes Joseph S. Hughes Law Office of Joseph S. Hughes 213 W. Ferry St. P.O. Box 83 Berrien Springs, Michigan 49103
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DECLARATION OF CATERINA AMARO-LUEDTKE, ESQ. REGARDING EMANUEL ROSALES BORBOA
I, Caterina Amaro-Luedtke, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Caterina Amaro-Luedtke. I make these statements based upon my personal knowledge after having spoken with my client, Emanuel Rosales Borboa.
2. I am an attorney with Amaro Immigration Law, PLLC. I have practiced immigration law for approximately 13 years.
3. I represent Emanuel Rosales Borboa, a 35-year-old Mexican national who has been detained at Calhoun County Correctional Facility (“Calhoun”) in Battle Creek, Michigan since March 9, 2020. I began representing Mr. Rosales Borboa in May 2017 and have spoken with him many times, most recently on April 24, 2020.
4. On August 27, 1995, when he was ten years old, Mr. Rosales Borboa entered the United States with his parents on a B-2 visa, and has continuously resided in the United States ever since.
5. U.S. Immigration and Customs Enforcement (“ICE”) first detained Mr. Rosales Borboa in April 2017 after Mr. Rosales Borboa failed to produce proof of legal U.S. residency to an ICE agent while at work in Woodhaven, Michigan. Following his failure to produce documentation, ICE detained Mr. Rosales Borboa, who was then released on bond in May 2017.
6. On March 7, 2020, Detroit police stopped and questioned Mr. Rosales Borboa when he was observed walking a female friend to her car after his evening shift at the Well Bar in Detroit, Michigan. According to the police report, Mr. Rosales Borboa had removed his jacket to offer it to his friend, which revealed a pistol in his waistband. A nearby officer allegedly noticed the firearm and asked to see Mr. Rosales Borboa’s Concealed Pistol License, which he was unable to provide. The officer placed Mr. Rosales Borboa under arrest. Mr. Rosales Borboa was charged with carrying a concealed weapon.
7. On March 9, 2020, Mr. Rosales Borboa appeared before a 36th District Court Magistrate for an arraignment, and his bond was set at $1,000.00 personal. However, ICE placed a detention hold on Mr. Rosales Borboa, and on March

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was never tested for COVID-19. Nor was Mr. Rosales Borboa ever quarantined from other inmates during his illness.
i) Currently, two detainees housed in the same cubicle as Mr. Rosales Borboa are exhibiting symptoms consistent with COVID-19, including persistent coughing and sneezing.
j) Calhoun does not provide detainees with masks, gloves, or hand sanitizer. Detainees in Pod H were given masks during the brief period in which detainees were moved from Pod H to Pod M because of the suspected case of COVID-19 in Pod H. After this incident these detainees, including Mr. Rosales Borboa, were required to dispose of their masks.
k) After discarding the masks, a female deputy told the Pod H detainees that if they were caught with a mask they would be issued a citation and thrown in the hole for 24 hours. Being thrown in the hole involves solitary confinement in a cell for 23 hours a day, with 1 hour of release for showering.
l) The staff at Calhoun do not consistently wear masks or gloves. My client shared that whether a staff member is wearing any PPE is “hit or miss.”
12.Given these conditions, it is impossible for Mr. Rosales Borboa and the other detainees to practice social distancing. It is not possible to keep the recommended six feet of distance between detainees. There are times, for example, when using the phone to speak with family and his attorneys, Mr. Rosales Borboa is only twelve inches away from another person. Calhoun staff does not discuss social distancing with the detainees, who continue to use the same phones, TV remotes, books, and playing cards. Detainees also trade and share food with, and generally remain in close proximity to, one another.
13.If released, Mr. Rosales Borboa’s siblings will transport him by car to his home in Allen Park, Michigan, where he has lived for the last five years with his mother and siblings. At home, Mr. Rosales Borboa will be able to get medical treatment for his asthma while maintaining a safe distance from others and quarantining as necessary.
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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 24th day of April 2020.
/s/ Caterina Amaro-Luedtke
Caterina Amaro-Luedtke (P70629) Amaro Immigration Law, PLLC 43494 Woodward Ave., Suite 200 Bloomfield Hills, MI 48302 Phone: 586-764-3372 Email: camaro@amaroimmigrationlaw.com
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DECLARATION OF KAI DE GRAAF
I, Kai De Graaf, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Kai De Graaf. I make these statements based upon my personal knowledge.
2. I am an attorney specializing in immigration matters. I have practiced immigration law for over 25 years.
3. I represent Min Dan Zhang, a 50-year-old Chinese national who has been detained in Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan since August 22, 2019. On April 20, 2020, the Detroit Immigration Court denied Ms. Zhang’s second request for bond.
4. Ms. Zhang entered the United States in 2013. On January 31, 2020, the Detroit Immigration Court denied her application
She has appealed this denial, and the appeal is currently pending before the Board of Immigration Appeals. 5. Ms. Zhang is worried about exposure to COVID-19, particularly in light of her age.
Doc#: US1:13741637v3

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6. I last spoke with Ms. Zhang on April 24, 2020. Through the course of my representation of Ms. Zhang, I have also learned the following about conditions in Calhoun: a. No one in Calhoun is able to practice social distancing. Ms. Zhang shares an overcrowded cell with four other people. The beds in each cell are only one to two feet apart. b. Ms. Zhang has not seen staff sanitizing the facility. Guards wear gloves but not masks. She does not see guards changing their gloves or washing or sanitizing their hands. The inmates have not been given face masks or any other personal protective equipment. c. The detainees have not received information about COVID-19. Staff has not provided any education or even instructed detainees to wash their hands frequently and for 20 seconds. d. Detainees do not have access to free soap. Any soap must be bought from the commissary. Many detainees cannot afford soap and are not provided with any. e. At least one detainee, a woman in Ms. Zhang’s cell, was ill and was coughing. Ms. Zhang believes that this woman was released from Calhoun.
Doc#: US1:13741637v3

CCaassee55:2:200--ccvv--1100882299--JJEELL--AAPPPP EECCFFNNoo..4747--152 fiflieledd0054/1/256/2/200 PPaaggeeIDID.2.1322995 PPaaggee33ooff33 3
7. Ms. Zhang has no criminal history. 8. If released, Ms. Zhang would return to care for her ten-year-old son
and stay with extended family in Brooklyn, New York. She would be able to get medical treatment if necessary and maintain a safe distance from others and/or quarantine. Her family would be able to arrange for her to travel by car from Calhoun to Brooklyn. Ms. Zhang would comply with any reasonable supervision conditions imposed including reporting as required. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 26th day of April 2020, in Ada, Michigan.
_____________ Kai W. De Graaf Law Offices of Kai W. De Graaf 64 Fulton Street, Suite 1006 New York, NY 10038
Doc#: US1:13741637v3

CCaassee552:2:200--ccvv--110088229993--JJSEEJLLM--AADPPRPPGEECECFCFFNNoNo.o.47427-2-16-32 fiflfielieleddd000544/1//22560/2//22000 PPPaaagggeeeIDIDD.2.1532839106 PPaaggee11ooff66
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

REYNALDO ALBINO-MARTINEZ, JOSE NICOLAS CHAVEZ-VARGAS, GENER ALEJANDRO CHINCHILLA-FLORES, CRAIG DOBLE, and MIGUEL ANGEL APARICIO NAVAS,
Petitioner-Plaintiffs,

- against -
REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,

Case No. 2:20-CV-10893 Judge Stephen J. Murphy, III

Respondent-Defendants.

DECLARATION OF REYNALDO ALBINO-MARTINEZ

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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 20th day of April 2020, in Saginaw, Michigan. /s/ Reynaldo Albino-Martinez Reynaldo Albino-Martinez

 
 Case 5:20-cv-10829-JEL-APP ECF No. 80 filed 05/18/20 PageID.2365 Page 1 of 17

Janet Malam, et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Petitioner-Plaintiff,

Civil No. 20-10829

v. Rebecca Adducci,

Honorable Judith E. Levy Mag. Judge Anthony P. Patti

Respondent-Defendant.

_________________________________________/

RESPONDENTS SUPPLEMENTAL BRIEF IN OPPOSITION TO PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER

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Pursuant to the Court’s order, Respondents submit supplemental briefing regarding Petitioners Salabarria and Borboa’s medical conditions, and the proper constitutional standard to be applied to this case. (Order, ECF No. 68).
A. Salabarria is not at an increased risk of harm from COVID-19. At the outset, inasmuch as the Court found the evidence on whether nonpulmonary hypertension increases the risk of serious complications from COVID19 “unclear,” Salabarria has not met her burden to obtain the extraordinary relief of a preliminary injunction and the Court should deny her motion in favor of litigation on the merits. (Order, ECF No. 68, PageID.1922-23). The scientific community has not found that primary hypertension alone (as opposed to pulmonary hypertension) places an individual at an increased risk of harm from COVID-19. As noted by the Court, CDC data shows that primary hypertension is a frequent comorbidity of those hospitalized for COVID-19. (Order, ECF No. 68, PageID.1924). But, importantly, the CDC, on whose data and findings every expert in this case relies, has not found primary hypertension alone to be a high-risk factor. (Resp., ECF No. 52-10). A May 2020 publication in the American Journal of Hypertension concluded that “there is as yet no evidence that hypertension is related to outcomes of COVID-19.” (Hypertension and COVID-19, Ex. 1). The authors noted that a conclusion could not be drawn from the fact that hypertension is such a common comorbidity because hypertension is “exceedingly
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frequent” in older people. Id. Dr. Venters does not offer any evidence, which has eluded the scientific
community, to support his conclusion that hypertension alone is a risk factor. He recognizes that the CDC does not identify primary hypertension as a high-risk factor, but nonetheless claims that it is an “additional risk factor” by citing the CDC data identifying hypertension as a common comorbidity among those hospitalized with complications from COVID-19. (Mot., ECF No. 44-4, ¶ 23). He does not explain how that fact means hypertension increases the risk of harm from COVID-19. As explained in the article above, correlation is not a basis in and of itself to presume that hypertension causes increased hospitalization. A physician who actually treats COVID-19 patients recently stated in a similar case that CDC guidelines are the “gold standard” for managing COVID-19 and “are in keeping with global expert consensus.” (Scissors Dec., Ex. 2). As he points out, there is no research, either in the United States or abroad, that supports a causal connection between primary hypertension and an increased risk of harm from COVID-19. Id.
Salabarria has established only that she has primary hypertension, which is stable with medication. (Mitchell, ECF No. 52-4, ¶ 15). Absent any evidence that primary hypertension alone puts her at an increased risk of harm from COVID-19, she fails to establish a likelihood of success on her due process claim or that she is likely to suffer irreparable harm absent an injunction.
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B. Borboa does not establish that his asthma is moderate or severe. To the extent the Court found Borboa did not present evidence that his asthma is moderate or severe, like Salabarria, he did not meet his burden to obtain extraordinary relief. Respondent does not take a position on whether Borboa’s asthma is moderate or severe, only that the evidence presented in this record does not establish that it is. The only evidence presented to the Court is Borboa’s statement to his lawyer that ten years ago he was diagnosed with asthma, prescribed the steroid Prednisone, and prescribed an Albuterol inhaler, which he claims he has used multiple times per week ever since. (Mot., ECF No. 44-11, ¶ 9). He does not state whether he used Prednisone beyond his hospital stay. Id. Medical records show that during his over two months of detention, he has not required an inhaler, nor has he made a single sick call to request evaluation or treatment for shortness of breath or asthma. (Quinn, ECF No. 52-5, ¶ 12). According to the National Asthma Education and Prevention Program, which publishes asthma guidelines, the levels of asthma severity are intermittent, mild, moderate, and severe. (Asthma, Ex. 3). Level of severity is assigned based on different features including the frequency of symptoms and the amount of medication needed to control exacerbations. Id. Importantly, the guidelines also state that, “[f]requency and severity may fluctuate over time for patients in any severity category.” Dr. Venters did not examine Borboa, and reviewed only the
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declaration from Borboa’s attorney and medical records from ICE,1 which show no exacerbations or treatment for asthma over the last two months. (Mot, ECF No. 444, ¶¶ 39-40; Reply, ECF No. 57-2, ¶ 12). Dr. Venters noted that Borboa had a “recent need for oral steroids” from which he concluded that “his asthma is not well controlled.” (Reply, ECF No. 57-2, ¶ 14(a)). There is no evidence that Borboa had a recent need for oral steroids. Nor is there any evidence that his asthma is not well controlled, or that poorly controlled asthma is necessarily moderate to severe asthma. Borboa fails to present any evidence to support his claim that at present, he has moderate to severe asthma. Thus, he fails to establish a likelihood of success or that he is likely to suffer irreparable harm absent an injunction.
C. The deliberate indifference standard applies to this case. The Court asked the parties to address to what extent the due process freedom from punishment standard articulated in Bell v. Wolfish applies independently of the deliberate indifference standard articulated in Farmer v Brennan. The constitutional standard that should be applied to prove a due process violation will vary with the “differences in the kind of conduct” alleged to be a violation. See Whitley v. Albers, 475 U.S. 312, 320 (1986); accord. J.H. v. Williamson Cty., 951 F.3d 709 (6th Cir. 2020) (applying different standards to pretrial detainee based on conduct); Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 1 Based on discovery responses, Borboa has not obtained any medical records from his treating physicians.
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2006) (applying deliberate indifference to pretrial detainees for certain conduct). Because the only “conduct” at issue in this case alleged to have violated the Fifth Amendment is the purported failure to provide for detainees’ reasonable safety from COVID-19, only one standard, the deliberate indifference standard, applies.
The deliberate indifference standard developed under the Eighth Amendment. The Eighth Amendment “applies to conditions of confinement that are not formally imposed as a sentence for a crime.” Helling v. McKinney, 509 U.S. 25, 29–30 (1993) (citation omitted). “[S]uch claims require proof of a subjective component,” and “where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner’s medical needs, the standard for that state of mind is the ‘deliberate indifference’ standard.” Id. at 30 (citation omitted). See also Wilson v. Seiter, 501 U.S. 294, 302–04 (1991) (“Whether one characterizes the treatment received by the prisoner as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard.”). “[P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). Thus, due process allows pretrial detainees to raise traditional Eighth Amendment claims, including for failure to provide medical care or adequately protect those in its custody. See Estelle v. Gamble, 429 U.S. 97, 102-
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03 (1976). While civil detainee claims “sound in the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment,” the deliberate indifference standard remains the same. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). See also Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985) (“[T]he eighth amendment rights of prisoners are analogized to those of detainees under the fourteenth amendment, to avoid the anomaly of extending greater constitutional protection to a convict than to one awaiting trial.”).
In Bell, the Court recognized an additional due process protection for pretrial detainees. There, the Court did not address the propriety of confinement itself, but “the detainee’s right to be free from punishment” during pretrial confinement. Bell, 441 U.S. at 534. The Court held “[i]n evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.” Id. at 535.
The Bell Court identified two manners in which pretrial detainees could show that prison officials intended the conditions of their confinement to be punitive, rather than “an incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538. First, the detainee can point to “an expressed intent to punish on the part of detention facility officials.” Id. Second, in the absence of an expressed intent, “a court may permissibly infer that the purpose of the
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governmental action is punishment” “if [the] restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless.” Id. at 539. While Bell explained that a court should also look to whether the condition “appears excessive in relation to the alternative purpose assigned [to it],” it cautioned that “these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Id. at 538-39.
Since Bell, the Sixth Circuit has drawn a distinction among pretrial detainee claims challenging the government’s failure to protect those in its custody, which are evaluated under a deliberate indifference standard, and challenges to affirmative acts of prison officials, which are evaluated under Bell’s punishment standard. In Roberts, the family of a pretrial detainee who committed suicide alleged that the defendant’s failure “to promulgate and enforce procedures to identify potential suicides and prevent their occurrence” violated his due process right to “reasonably necessary medical care while incarcerated.” 773 F.2d at 722. The plaintiff argued, among other things, that the district court failed to “submit to the jury the question whether the defendants intended to punish the deceased” in addition to the question of deliberate indifference. Id. at 725. The court drew a distinction between failure to act claims and those where a specific action was challenged. The court noted that Bell “deals with actions rather than the failure to
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act,” but even if it “transpose[d] the Bell v. Wolfish standard to failures to act, [it] would also arrive at a deliberate indifference requirement.” Id. at 724-25. The court concluded because the jury was instructed on deliberate indifferent, the district court did not err in failing to provide an additional instruction on Bell’s punitive intent standard. Id.
The reason for the distinction is that where it concerns reasonable safety, prisoners and pretrial detainees are entitled to the same level of protection under the constitution, thus the same standard applies. See Villegas, 709 F.3d at 568 (internal citations omitted) (“Pretrial detainee claims, though they sound in the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment, are analyzed under the same rubric as Eighth Amendment claims brought by prisoners” because “the concept underlying the Eighth Amendment is nothing less than the dignity of humankind.”). In the context of protection and medical care, courts have held Bell is satisfied by a finding of deliberate indifference. “Bell establishes that jail officials violate the due process rights of their detainees if they exhibit a deliberate indifference to the medical needs of the detainees that is tantamount to an intent to punish.” Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989). “Properly understood, the Bell test is functionally equivalent to a deliberate indifference inquiry.” Hare v. City of Corinth, Miss., 74 F.3d 633, 646 (5th Cir. 1996).
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The distinction between failure to act to protect and challenges to overt actions of prison officials is reflected in Sixth Circuit case law following Roberts and Bell. See, e.g., Richko v. Wayne Cty., Mich., 819 F.3d 907, 913 (6th Cir. 2016) (applying deliberate indifference for failure to protect pretrial detainee “from violent attacks by inmates”); Villegas, 709 F.3d at 568 (failure to provide for immigration detainees’ medical needs); Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) (applying deliberate indifference standard to claim alleging failure to provide prompt medical care);. Compare with Turner v. Stumbo, 701 F.2d 567 (6th Cir. 1983) (applying Bell standard to assess decision to close one facility for pretrial detainees and transfer them to another).
In J.H. v. Williamson Cty., 951 F.3d 709 (6th Cir. 2020), the court applied both the deliberate indifference standard and the Bell punishment standard based on the conduct at issue. In J.H., the plaintiff, a minor in pretrial detention, raised a number of due process claims challenging the prison’s decision to place him in solitary confinement, id. at 716-17, its failure to “provide adequate medical and mental health care,” id. at 722, and the municipality’s failure to adequately train its employees, id. at 720. The court applied the Bell standard to the prison’s affirmative act of placing the minor in solitary confinement, id. at 717, but evaluated defendants’ failure to provide adequate training and provide adequate medical and mental health care under a deliberate indifference standard, id. at 720,
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722. See also Leary v. Livingston Cty., 528 F.3d 438, 442 (6th Cir. 2008) (applying both standards based on conduct at issue).
In Butler, the Eighth Circuit directly addressed whether deliberate indifference or the Bell punishment standard applied to a claim alleging a failure by the government to protect those in its care from a communicable disease. 465 F.3d at. 344. The court emphasized that “the infliction of punishment is a deliberate act” and the Bell standard was meant to determine whether a governmental act is punitive in nature.” Id. Conversely, the government’s “duty to protect . . . is not based on a pretrial detainee’s right to be from punishment but is grounded in principles of safety and general well-being: ‘when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.’” Id. at 344-45 (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). Because pretrial detainees and convicted inmates “have the same right to these basic human needs,” the Eighth Amendment deliberate indifference standard must apply. Id. at 345.
In this case, Petitioners assert that the conditions at Calhoun fail to protect them from exposure to COVID-19. The only conduct at issue is an alleged failure
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to act to adequately protect the Petitioners’ reasonable safety – not whether Respondent failed to act as a means of punishment. Thus, as set forth above, the deliberate indifference standard applies to determine whether Petitioners can establish a Fifth Amendment due process violation based on this conduct.
Petitioners attempt to get a second bite at the apple by asserting that apart from conditions of confinement, an independent claim exists under Bell because they also assert a “fact of confinement” claim. Bell did not address the fact of confinement. Bell, 441 U.S. at 526. Nonetheless, Petitioners allege that because there are no conditions that would ensure their safety from COVID-19 based on the nature of congregate settings, the very fact of their detention has become punitive under Bell. This “distinction” does not give rise to an independent claim. The right to relief still arises from the same obligation to provide reasonable safety, and the same conduct is at issue. The distinction between whether there are, or are not, conditions that the Court could impose to make the confinement constitutional is only relevant to the relief that may be ordered. If the Court finds that there are no possible conditions that ensure reasonable safety, the Court may be able to enter habeas relief. See Bell, 441 U.S. at 527, n.6 (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”). Otherwise, if the Court finds deliberate indifference, the remedy for a
12

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conditions of confinement claim is injunctive relief to address the conditions. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (affirming general principle that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to plaintiffs); Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017) (“Respondents instead challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners…[t]o address those kinds of decisions, detainees may seek injunctive relief.”).
Typically, when courts address a “fact of confinement” claim, it is the fact that the person is detained at all, i.e. the validity of detention, not whether conditions of confinement have become unbearable (that is why Bell left the question for another day). See Lutz v. Hemingway, 476 F.Supp.2d 715, 718 (E.D. Mich. 2007) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)) (“Complaints that involve only conditions of confinement do not relate to the legality of the petitioner’s confinement…”); and Muhammad v. Close, 540 U.S. 749, 750 (2004) (challenges to “circumstances of confinement” do not go to validity of confinement) (internal citation omitted).
Petitioners present only a challenge to the conditions of confinement at Calhoun. Because they allege the conditions violate the due process requirement that Respondent provide for detainees’ reasonable safety, the only applicable constitutional standard is deliberate indifference.
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D. Petitioners are not entitled to relief under the Bell standard. Even if the Court found a separate claim can be stated under Bell, Petitioners fail to establish that an intent to punish can be inferred from their lawful immigration detention. Petitioners do not allege an express intent to punish. Instead, they ask the Court to find their otherwise lawful detention punitive based solely on the emergence of COVID-19. “Under Bell, a pretrial detainee can demonstrate conditions of confinement amount to unconstitutional punishment: (1) by showing “an expressed intent to punish on the part of the detention facility officials,” or (2) by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H., 951 F.3d at 717. The Supreme Court has for over a century recognized the government’s legitimate interest in protecting the community and ensuring that noncitizens appear for their immigration proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 523 (2003) (“[D]etention during deportation proceedings [is] a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character.”) (citations and internal quotation marks omitted). Further, detention for Petitioners is not merely authorized, it is required. An immigration
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judge found Borboa to be a danger and ordered him to remain detained pending his removal proceedings. (Quinn, ECF No. 52-5, ¶ 10). The Board of Immigration Appeals affirmed Salabarria’s removal order on April 3, 2020, and her detention is mandated for at least the 90-day period following entry of the removal order. (Mitchell, ECF No. 52-4, ¶ 12); 8 U.S.C. § 1231(a)(2). Thus, Borboa and Salabarria’s detention is rationally related to a legitimate government purpose.
To the extent Bell applies to confinement itself, neither Salabarria nor Borboa’s detention is excessive in relation to the government’s legitimate purpose. Petitioners have a “heavy burden” to establish that Respondent “exaggerated [her] response” to the government’s legitimate purpose when she “actuated these restrictions and practices.” Bell, 441 U.S. 561-62. Petitioners cannot show that Respondent exaggerated her response to the legitimate purpose served by immigration detention in order to punish them. The decision to detain Borboa and Salabarria was made independent of the pandemic, and is the same response applied to immigration detainees across the country. Further, their detention is mandatory. Nor is detention excessive merely because other less restrictive means exist. See Bell, 441 U.S. at 540 (“If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention.”).
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Other courts who have considered the issue have been unwilling to find that

detention, in and of itself, violates Bell’s prohibition on punitive detention and

conditions of confinement. See Dawson v. Asher, No. 20-0409, 2020 WL 1304557,

at *2 (W.D. Wash. Mar. 19, 2020) (“Plaintiffs do not cite to authority, and the

court is aware of none, under which the fact of detention itself becomes an

‘excessive’ condition solely due to the risk of a communicable disease outbreak—

even one as serious as COVID-19.”). “To adopt [Plaintiffs’] position would be to

hold that the detention of any [civil] detainee during the pandemic is necessarily

unconstitutional.” Toure v. Hott, --- F. Supp. 3d ----, 2020 WL 2092639, at *10

(E.D. Va. Apr. 29, 2020). Like other courts in this district, this Court should

decline to find a claim under Bell. See Murai v. Adducci, et al., Case No. 20-

10816, ECF No. 15 (Cleland, R.) (not addressing which standard should apply but

finding immigration detention at Calhoun is not punitive); and Marqus v. Adducci,

et al., Case No. 20-11121, ECF No. 7 (Hood, D.) (not addressing which standard

should apply but finding that immigration detention is not punitive).

By: /s/ Jennifer L. Newby_______

Dated: May 18, 2020

Jennifer L. Newby (P68891) Assistant United States Attorney Attorneys for Respondents 211 W. Fort Street, Suite 2001 Detroit, Michigan 48226 (313) 226-0295 Jennifer.Newby@usdoj.gov
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CERTIFICATE OF SERVICE I hereby certify that on May 18, 2020, the foregoing paper was filed with the Clerk of the Court using the ECF System which will give notice to all counsel of record.
/s/ Jennifer L. Newby
17

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EDITORIAL

Downloaded from https://academic.oup.com/ajh/article-abstract/33/5/373/5816609 by Justice Department, Antitrust Branch user on 13 May 2020

Hypertension and COVID-19

Ernesto L. Schiffrin,1, John M. Flack,2 Sadayoshi Ito,3 Paul Muntner,4 and R. Clinton Webb5

The world is currently suffering from the outbreak of a pandemic caused by the severe acute respiratory syndrome coronavirus SARS-CoV-2 that causes the disease called COVID-19, first reported in Wuhan, Hubei Province, China on 31 December 2019.1 As of 29 March 2020, there have been 732,153 confirmed cases of COVID-19 reported worldwide, with 34,686 deaths.2 The clinical and epidemiological features of COVID-19 have been repeatedly published in the last few weeks. Interestingly, specific comorbidities associated with increased risk of infection and worse outcomes with development of increased severity of lung injury and mortality have been reported. The most common comorbidities in one report were hypertension (30%), diabetes (19%), and coronary heart disease (8%).3 Another report showed that the most frequent comorbidities in patients with COVID-19 who developed the acute respiratory distress syndrome were hypertension (27%), diabetes (19%), and cardiovascular disease (6%).4 The frequency with which
Correspondence: Ernesto L. Schiffrin (ernesto. schiffrin@mcgill.ca, http://ladydavis.ca/en/ ernestoschiffrin).
1Lady Davis Institute for Medical Research, and Department of Medicine, Sir Mortimer B. DavisJewish General Hospital, McGill University, Montreal, Quebec, Canada; 2Department of Internal Medicine, Southern Illinois University School of Medicine, Springfield, Illinois, USA; 3Division of Nephrology, Endocrinology and Hypertension, Tohoku University, Sendai, Japan; 4Department of Epidemiology, University of Alabama, Birmingham, Alabama, USA; 5Department of Cell Biology and Anatomy, and Cardiovascular Translational Research Centre, University of South Carolina, Columbia, South Carolin, USA.
Initially submitted March 30, 2020; online publication April 6, 2020.
doi:10.1093/ajh/hpaa057
© American Journal of Hypertension, Ltd 2020. All rights reserved. For Permissions, please email: journals.permissions@oup.com

COVID-19 patients are hypertensive is not entirely surprising nor does it necessarily imply a causal relationship between hypertension and COVID-19 or its severity, since hypertension is exceedingly frequent in the elderly, and older people appear to be at particular risk of being infected with SARS-CoV-2 virus and of experiencing severe forms and complications of COVID-19.
It is unclear whether uncontrolled blood pressure is a risk factor for acquiring COVID-19, or whether controlled blood pressure among patients with hypertension is or is not less of a risk factor. However, several organizations have already stressed the fact that blood pressure control remains an important consideration in order to reduce disease burden, even if it has no effect on susceptibility to the SARS-CoV-2 viral infection.5 Nevertheless, the fact that hypertension, and other forms of cardiovascular disease also found frequently in COVID-19 patients, are often treated with angiotensin-converting enzyme (ACE) inhibitors and angiotensin receptor blockers (ARBs), and that SARS-CoV-2, the virus causing COVID-19, binds to ACE2 in the lung to enter cells,6,7 has raised questions regarding the possibility that these agents could either be beneficial or actually nefarious in patients treated with them with respect to susceptibility to acquire COVID-19 or in relation to its outcome. It has been shown that ACE inhibitors and ARBs increase ACE2,8,9 which could theoretically increase the binding of SARS-Cov-2 to the lung and its pathophysiological effects leading to greater lung injury. However, ACE2 has actually been hown to protect from lung injury in experimental studies.10 ACE2 forms angiotensin 1–7 from angiotensin II, and thus reduces the inflammatory action of angiotensin II, and increases the potential for the anti-inflammatory effects of angiotensin 1–7. Accordingly, by reducing either

formation of angiotensin II in the case of ACE inhibitors, or by antagonizing the action of angiotensin II by blocking angiotensin AT1 receptors in the case of ARBs,11,12 these agents could actually contribute to reduce inflammation systemically and particularly in the lung, heart, and kidney. Thus, ACE inhibitors and ARBs could diminish the potential for development of either acute respiratory distress syndrome, myocarditis or acute kidney injury, which can occur in COVID19 patients. In fact, ARBs have been suggested as a treatment for COVID19 and its complications.13 Increased soluble ACE2 in the circulation could bind SARS-CoV-2, reducing its ability to injure the lungs and other ACE2 bearing organs.14 Using recombinant ACE2 could be a therapeutic approach in COVID-19 to reducing viral load by binding circulating SARS-CoV-2 viral particles and reducing their potential attachment to tissue ACE2. None of these possibilities have however been demonstrated in patients yet.
In conclusion, there is as yet no evidence that hypertension is related to outcomes of COVID-19, or that ACE inhibitor or ARB use is harmful, or for that matter beneficial, during the COVID-19 pandemic. Use of these agents should be maintained for the control of blood pressure, and they should not be discontinued, at least on the basis of current evidence at this time.
REFERENCES
1. Zhu N, Zhang D, Wang W, Li X, Yang B, Song J, Zhao X, Huang B, Shi W, Lu R, Niu P, Zhan F, Ma X, Wang D, Xu W, Wu G, Gao GF, Tan W; China Novel Coronavirus Investigating and Research Team. A novel coronavirus from patients with pneumonia in China, 2019. N Engl J Med 2020; 382:727–733.
2. Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University. https://gisanddata.maps.arcgis.

American Journal of Hypertension  33(5)  May 2020  373

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Editorial

com/apps/opsdashboard/index.html#/

bda7594740fd402994. Accessed 30 March 2020.

3. Zhou F, Yu T, Du R, Fan G, Liu Y, Liu Z,

Xiang J, Wang Y, Song B, Gu X, Guan L, Wei Y,

Li H, Wu X, Xu J, Tu S, Zhang Y, Chen H,

Cao B. Clinical Course and Risk Factors for

Mortality of Adult Inpatients With COVID-

19 in Wuhan, China: A Retrospective Cohort

Study. Lancet. 2020; 395:1054–1062.

4. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S,

Huang H, Zhang L, Zhou X, Du C, Zhang Y,

Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X,

Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C,

Zheng J, Song Y. Risk factors associated with

acute respiratory distress syndrome and

death in patients with coronavirus disease

2019 pneumonia in Wuhan, China. JAMA

Intern Med 2020, published online 13 March

(doi:10.1001/jamainternmed.2020.0994).

5. HFSA/ACC/AHA Statement Addresses

Concerns Re: Using RAAS Antagonists in

COVID-19.

https://professional.heart.org/

professional/ScienceNews/UCM_505836_

HFSAACCAHA-statement-addresses-concerns-

re-using-RAAS-antagonists-in-COVID-19.jsp.

Accessed 29 March 2020.

6. Wan Y, Shang J, Graham R, Baric RS, Li F. Receptor recognition by the novel coronavirus from Wuhan: an analysis based on decade-long structural studies of SARS coronavirus. J Virol 2020; 94:e00127-20.
7. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler G, Wu N-H, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 cell entry depends on ACE2 and TMPRSS2 and is blocked by a clinically proven protease inhibitor. Cell 2020; 181:1–10.
8. Ferrario CM, Jessup J, Chappell MC, Averill DB, Brosnihan KB, Tallant EA, Diz DI, Gallagher PE. Effect of angiotensin-converting enzyme inhibition and angiotensin II receptor blockers on cardiac angiotensin-converting enzyme 2. Circulation 2005; 111:2605–2610.
9. Furuhashi M, Moniwa N, Mita T, Fuseya T, Ishimura S, Ohno K, Shibata S, Tanaka M, Watanabe Y, Akasaka H, Ohnishi H, Yoshida H, Takizawa H, Saitoh S, Ura N, Shimamoto K, Miura T. Urinary angiotensin-converting enzyme 2 in hypertensive patients may be increased by olmesartan, an angiotensin II receptor blocker. Am J Hypertens 2015; 28:15–21.

10. Imai Y, Kuba K, Rao S, Huan Y, Guo F, Guan B, Yang P, Sarao R, Wada T, Leong-Poi H, Crackower MA, Fukamizu A, Hui CC, Hein L, Uhlig S, Slutsky AS, Jiang C, Penninger JM. Angiotensin-converting enzyme 2 protects from severe acute lung failure. Nature 2005; 436:112–116.
11. Phadke M, Saunik S. Rapid response: use of angiotensin receptor blockers such as Telmisartan, Losartsan in nCoV Wuhan Corona Virus infections—novel mode of treatment. Response to the emerging novel coronavirus outbreak. Br Med J 2020; 368:m406.
12. Zheng YY, Ma YT, Zhang JY, Xie X. COVID19 and the cardiovascular system. Nat Rev Cardiol, published online 5 March 2020 (doi:10.1038/s41569-020-0360-5).
13. Gurwitz D. Angiotensin receptor blockers as tentative SARS-CoV-2 therapeutics. Drug Dev Res 2020, published online 4 March; doi: 10.1002/ddr.21656.
14. Batlle D, Wysocki J, Satchell K. Soluble angiotensin-converting enzyme 2: a potential approach for coronavirus infection therapy? Clin Sci (Lond) 2020; 134:543–545.

374  American Journal of Hypertension  33(5)  May 2020

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Case 5:20-cv-10829-JEL-APP ECF No. 80-3 filed 05/18/20 PageID.2391 Page 2 of 2

 
 Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2418 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff,

- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR A TEMPORARY
RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2419 Page 2 of 23
TABLE OF CONTENTS
Table of Authorities .................................................................................................. ii I. Introduction......................................................................................................1 II. Plaintiffs are at High Risk of Severe Injury or Death from COVID-19. ........1
A. Mr. Rosales Borboa is at High Risk......................................................1 B. Ms. Rodriguez Salabarria is at High Risk.............................................3 III. The Punishment Test, Not the Deliberate Indifference Test, Applies. ...........4 A. The Constitutional Framework for Civil Detention..............................4 B. Because Plaintiffs Are Civil Detainees Seeking Release from
Detention, Their Claims Must Be Evaluated Under the Punishment Test. ...................................................................................7 IV. If the Court Resorts to the Deliberate Indifference Test, It Should Apply Only the Objective Component Of That Test. ...................................10 V. Plaintiffs’ Detention is Unconstitutional Under Any of the Tests. ...............13 VI. Conclusion .....................................................................................................15

Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2420 Page 3 of 23

TABLE OF AUTHORITIES

CASES

Page(s)

Banks v. Booth, No. CV 20-849 (CKK), 2020 WL 1914896 (D.D.C. Apr. 19, 2020).................11

Barbecho v. Decker, No. 20-CV-2821, 2020 WL 2513468 (S.D.N.Y. May 15, 2020).........................3

Basank v. Decker, No. 20 Civ. 2518-AT, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ...................................................................................................................14

Bell v. Wolfish, 441 U.S. 520 (1979)......................................................................................6, 7, 8

Block v. Rutherford, 468 U.S. 576 (1984)..............................................................................................7

Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006) ................................................................................9

Essien v. Barr, No. 20-CV-1034-WJM, 2020 WL 1974761 (D. Colo. Apr. 24, 2020) ...................................................................................................................11

Estelle v. Gamble, 429 U.S. 97 (1976)................................................................................................7

Farmer v. Brennan, 511 U.S. 825 (1970)............................................................................................13

Favi v. Kolitwenzew, No. 20-CV-2087, 2020 WL 2114566 (C.D. Ill. May 4, 2020)...........................10

Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020) ...................................................................................................................14

Foucha v. Louisiana, 504 U.S. 71 (1992)............................................................................................4, 6

ii

Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2421 Page 4 of 23
Galan-Reyes v. Acoff, No. 20-cv-345-SMY, 2020 WL 2497133 (S.D. Ill. May 14, 2020)...............6, 15
Graham v. Connor, 490 U.S. 386 (1989)..............................................................................................8
Hadix v. Johnson, 367 F.3d 513 (6th Cir. 2004) ..............................................................................13
Harris v. Davidson Cty. Sheriff, No. 19-5041, 2019 WL 7573883 (6th Cir. Dec. 11, 2019) ................................12
Helling v. McKinney, 509 U.S. 25 (1993)..............................................................................................11
J.H. v. Williamson Cty., Tenn., 951 F.3d 709 (6th Cir. 2020) .......................................................................passim
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)..............................................................................................5
Kevin M. A. v. Decker, No. CV 20-4593 (KM), 2020 WL 2092791 (D.N.J. May 1, 2020)......................6
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)............................................................................5, 6, 8, 12
Love v. Franklin Cty., Ky., 376 F. Supp. 3d 740 (E.D. Ky. 2019) .................................................................12
Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ............................10
Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) ................................................................................9
Pimentel-Estrada v. Barr, No. 2:20-cv-495-RSM-BAT, 2020 WL 2092430 (W.D. Wash. Apr. 28, 2020) ...........................................................................................6, 10, 14
Prieto Refunjol v. Adducci, No. 2:20-CV-2099, 2020 WL 2487119 (S.D. Ohio May 14, 2020).............10, 15
iii

Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2422 Page 5 of 23
Rafael L.O. v. Tsoukaris, No. 20-3481-JMV, 2020 WL 1808843 (D.N.J. Apr. 9, 2020) ...........................15
Rhodes v. Chapman, 452 U.S. 337 (1981)............................................................................................11
Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) ................................................................................5
Santobello v. New York, 404 U.S. 257 (1971) (Douglas, J., concurring).....................................................4
Turner v. Stumbo, 701 F.2d 567 (6th Cir. 1983) ................................................................................8
United States v. Salerno, 481 U.S. 739 (1987)..........................................................................................4, 6
Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL (JFM), 2020 WL 2319980 (D. Ariz. May 11, 2020).....................................................................................................10
Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020) ...................14
Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563 (6th Cir. 2013) ................................................................................9
Winkler v. Madison Cty. Ky., 893 F.3d 877 (6th Cir. 2018) ..............................................................................11
Youngberg v. Romeo, 457 U.S. 307 (1982)..............................................................................................7
Zadvydas v. Davis, 533 U.S. 678 (2001)....................................................................................5, 6, 13
iv

Case 5:20-cv-10829-JEL-APP ECF No. 82 filed 05/18/20 PageID.2423 Page 6 of 23
I. Introduction Plaintiffs Emanuel Rosales Borboa and Damary Rodriguez Salabarria are at
high risk of severe illness or death from COVID-19, and should be released. Mr. Rosales Borboa is at high risk because of moderate to severe asthma; Ms. Rodriguez Salabarria, because of her hypertension. Plaintiffs clearly meet the deliberate indifference standard that the Court has applied to date. The Court should also find that, because Plaintiffs are civil immigration detainees, the proper standard is whether their detention amounts to punishment because it is not reasonably related to, or is excessive in relation to, a non-punitive purpose. In the alternative, should this Court continue to apply the deliberate indifference standard, it should apply only the objective test, and not the subjective prong. II. Plaintiffs are at High Risk of Severe Injury or Death from COVID-19.
A. Mr. Rosales Borboa is at High Risk. According to the Centers for Disease Control and Prevention (CDC), people
with “moderate to severe” asthma are at increased risk of serious illness and death from COVID-19. See Venters Decl. at ¶ 6. As detailed in the supplemental declaration of Dr. Venters and the new declaration of Dr. Peeler, who has also reviewed Mr. Rosales Borboa’s medical records (see Ngo Decl., Exs. A and B) and submissions, Mr. Rosales Borboa has “moderate persistent asthma” that “places him in the group of individuals at high-risk of severe COVID-19 as outlined by the CDC.” Peeler Decl. at ¶ 19. Mr. Rosales Borboa was diagnosed in October 2000,
1

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and since then he has had multiple hospitalizations for asthma exacerbations. He displays symptoms commensurate with moderate persistent asthma, including using an inhaler two to three times per week, and sometimes nearly every day. See Peeler Decl. at ¶¶ 6–7, 10; Rosales Borboa Decl. at ¶¶ 4–7, 9. Furthermore, until a full assessment can be performed, established medical practice dictates that he be considered at high risk from COVID-19 (see Venters Decl. at ¶ 8; see also Peeler Decl. at ¶ 15 (noting that to maintain patient safety “it is common medical practice to assume a higher level of [asthma] severity until proven otherwise”)) especially because his asthma is not-well controlled in detention. See Peeler Decl. at ¶ 18; Venters Decl. at ¶¶ 10–11.
In addition, housing logs recently obtained through discovery show that Mr. Rosales Borboa, and approximately 42 other detainees, have been moved within Calhoun many times, putting them at greater risk of contracting COVID-19, and that Defendants are not quarantining new detainees from others on arrival, which places detainees with underlying medical conditions like Mr. Rosales Borboa in danger. See Haier Decl. at ¶¶ 9–10; Ngo Decl., Ex. C (Housed Inmate Reports).1
1 On March 14, Mr. Borboa was first housed in Pod H with 13 other detainees. By March 21, he had been moved to Pod M and was housed with 20 other detainees, 11 of whom had moved with him from Pod H. By March 28, he was back in Pod H. See Haier Decl. at ¶ 9; Ngo Decl., Ex. C at ICE-000013, 20, and 23–24.
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B. Ms. Rodriguez Salabarria is at High Risk. As detailed in the declaration of Dr. Lieb, who has reviewed Ms. Rodriguez
Salabarria’s medical records and submissions, Ms. Rodriguez Salabarria has chronic hypertension, which puts her at high risk. See Lieb Decl. at ¶ 9. She takes Lisinopril, an “ACE inhibitor.” See id. at ¶ 10(a). COVID-19 patients with hypertension that take an ACE inhibitor have a mortality rate of 32.7 percent. See Lieb Decl. at ¶ 10(b). Ms. Salabarria is also obese, which may exacerbate the adverse consequences of her hypertension. See id. at ¶ 10(c).
The declarations of Drs. Venters and Lieb make clear that, despite Defendants’ assertions to the contrary (see ECF No. 64 at 2–3), the CDC now considers hypertension, whether “ordinary” or pulmonary, to be a high-risk factor for serious illness or death from COVID-19. See Venters Decl. at ¶¶ 13, 17; Lieb Decl. at ¶¶ 9–10.2 Hypertension generally, irrespective of the particular kind, is the most-common diagnosis among people who are so ill with COVID-19 they require hospitalization. See Venters Decl. at ¶¶ 14–15. It is also the most common comorbidity among people who die from COVID-19. See id. at ¶ 16. And, patients with hypertension are 2.3 times more likely to contract COVID-19 as patients
2 Defendants cite to an editorial submitted to the American Journal of Hypertension on March 30, 2020, but the CDC has supplemented its guidance regarding groups at higher risk for severe illness, which now specifically references hypertension. See Barbecho v. Decker, No. 20-CV-2821, 2020 WL 2513468, at *3 (S.D.N.Y. May 15, 2020).
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without it. See Lieb Decl. at ¶ 10(b). Indeed, Defendants recognize that Ms. Rodriguez Salabarria, like other detainees at Calhoun with hypertension, belong on the same list of chronic care patients as individuals who have asthma, diabetes, and liver disease. See Ngo. Decl, Ex. D (Chronic Care Detainees). Moreover, the government itself has cited the increased risk posed by hypertension to justify suspending admission of people without valid documents into the U.S.3 III. The Punishment Test, Not the Deliberate Indifference Test, Applies.
A. The Constitutional Framework for Civil Detention “In our society, liberty is the norm,” and detention is the “carefully limited
exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Incarceration can be imposed as punishment for a crime but only after extensive procedural protections. See Santobello v. New York, 404 U.S. 257, 264 (1971) (Douglas, J., concurring). While the Eighth Amendment imposes limits on criminal punishment—it may not be cruel and unusual—the purpose of incarceration after conviction is to punish.
Civil detainees, by contrast, “may not be punished.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Their claims are evaluated under the Fifth Amendment, and “[f]reedom from imprisonment—from government custody, detention, or other
3 See Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 FR 16559, 16561 (Mar. 24, 2020); CDC Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, at 11 (March 20, 2020).
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forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Accordingly, “detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and ‘narrow’ nonpunitive ‘circumstances,’ where a special justification . . . outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’” Id. (original emphasis) (quoting Foucha, 504 U.S. at 80); Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003) (same).
To ensure that civil detention does not become punishment, the Supreme Court has insisted that it must “bear[] [a] reasonable relation to the purpose for which the individual [was] committed.” Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Moreover, even if linked to a permissible purpose, ostensibly civil restrictions constitute punishment if they are “excessive in relation to the alternative [non-punitive] purpose” used to justify them. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015) (pretrial detainee can demonstrate punishment by showing that “the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose”); J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020) (same). This basic “punishment test” applies to the question of whether civil detention is permissible at
5

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all, see Zadvydas, 533 U.S. at 690, and to whether the conditions of confinement are punitive. See Kingsley, 135 S. Ct. at 2473–74; Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). The nature of confinement can determine whether the fact of confinement is punitive. Salerno, 481 U.S. at 748; Foucha, 504 U.S. at 79.
Immigration detention—like all civil detention—must be supported by a “sufficiently strong special justification.” Zadvydas, 533 U.S. at 690. That justification is asserted to be “assuring the alien’s presence at the moment of removal.”4 Id. at 699. The court must thus balance the individual’s liberty interest against the state’s interest in ensuring removal availability. Id.; Salerno, 481 U.S. at 747.
Recognizing the non-punitive requirement for civil detention, many courts have used the punishment test to analyze whether civil detainees should be released due to the pandemic.5 Plaintiffs here likewise argue that exposure to the grave risk of serious injury or death in detention is not reasonable, particularly where they can safely be supervised in the community. Their liberty interest in freedom from
4 While public safety is also “a factor potentially justifying confinement,” the Supreme Court has emphasized that preventive detention based on dangerousness is “limited to specially dangerous individuals and subject to strong procedural protections.” Zadvydas, 533 U.S. at 691, 700.
5 See, e.g., Galan-Reyes v. Acoff, No. 20-cv-345-SMY, 2020 WL 2497133, at *4 (S.D. Ill. May 14, 2020); Pimentel-Estrada v. Barr, No. 2:20-cv-495-RSM-BAT, 2020 WL 2092430, at *17 (W.D. Wash. Apr. 28, 2020); Kevin M. A. v. Decker, No. CV 20-4593 (KM), 2020 WL 2092791, at *6–8 (D.N.J. May 1, 2020).
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detention and the attendant risk of severe illness, permanent injury or death outweighs the government’s interest in ensuring future availability for deportation.
B. Because Plaintiffs Are Civil Detainees Seeking Release from Detention, Their Claims Must Be Evaluated Under the Punishment Test.
Defendants pay lip service to the prohibition on punishing civil detainees, see ECF No. 52 at 28, but argue that this Court should nevertheless apply the deliberate indifference test. The test originated in the context of medical claims brought by convicted prisoners and recognizes that because the failure to provide medical treatment “may result in pain and suffering which no one suggests would serve any penological purpose” or “may actually produce physical torture or a lingering death, . . . deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103–104 (1976) (citation omitted).
The Supreme Court has taken a very different approach to claims brought by civil detainees. “Due process requires that a pretrial detainee not be punished.” Bell, 441 U.S. at 535 n.16; see also Block v. Rutherford, 468 U.S. 576, 584 (1984) (applying punishment test to pretrial detainee). Indeed, in Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982), the Court held that it was error to employ a “deliberate indifference” instruction to the claims of a plaintiff committed to a state institution due to his intellectual disability, explaining that “[p]ersons who have been [civilly] committed are entitled to more considerate treatment and conditions of
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confinement than criminals whose conditions of confinement are designed to punish.” Similarly, in Graham v. Connor, 490 U.S. 386, 398 (1989), the Court held that it was error to apply the excessive force test adopted for convicted prisoners’ claims in a case concerning force used during arrest because “the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” The Supreme Court’s recent decision in Kingsley, relying heavily on Bell v. Wolfish, reaffirmed that the punishment test applies to pretrial detention:
[I]n the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not “rationally related to a legitimate nonpunitive governmental purpose” or that the actions “appear excessive in relation to that purpose.” [Bell, 441 U.S.] at 561 . . . [A]s Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose. Kingsley, 135 S. Ct. at 2473–74. Because Plaintiffs are un-convicted civil detainees, the punishment test, not the deliberate indifference test, applies.
Defendants, in arguing the contrary, will likely point to Sixth Circuit cases applying the deliberate indifference test to civil detainees. In fact, the Sixth Circuit, has applied both tests, both before and after Kingsley, depending on the nature of the claim: conditions claims have been evaluated under the punishment test and medical claims under deliberate indifference. Compare, e.g., Turner v. Stumbo, 701 F.2d 567, 568, 572–73 (6th Cir. 1983) (applying punishment test to conditions claims by
8

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persons committed to a psychiatric unit), with Villegas v. Metro. Gov’t of Nashville,
709 F.3d 563, 568–69 (6th Cir. 2013) (applying deliberate indifference test to
medical claim). J.H., 951 F.3d at 717, 722–23, exemplifies this claim-by-claim
approach; in the same case, the court evaluated a minor’s medical treatment claim
under deliberate indifference, but applied the punishment test, holding to hold that
solitary confinement was excessive in relation to the non-punitive purpose of
maintaining institutional security.
Kingsley calls into serious doubt the use of a deliberate indifference test for
any type of claim by a civil detainee.6 But if the deliberate indifference test applies
at all to pretrial detainees in the Sixth Circuit post-Kingsley, it applies at most to
their medical treatment claims.7 And, as found by this Court, Plaintiffs here are not
6 See Miranda v. Cty. of Lake, 900 F.3d 335, 351–52 (7th Cir. 2018) (Kingsley does not support different standards for different types of claims; all claims by pretrial detainees are subject only to an objective unreasonableness inquiry).
7 This Court previously looked to Butler v. Fletcher, 465 F.3d 340, 345–46 (8th Cir. 2006), which applied the deliberate indifference test in a Section 1983 damages action brought by a pretrial detainee infected with tuberculosis. Unlike in Butler, Plaintiffs are not seeking financial compensation based on claims that they became ill due to Defendants’ failure to take adequate precautions. Moreover, as this Court has pointed out, COVID-19 is not tuberculosis. While Butler “suggest[s] precautions can reasonably mitigate the risk of tuberculosis . . . in conditions of communal confinement, COVID19 is a global pandemic of unparalleled scope, and the public health evidence available to the Court suggests that communal confinement cannot ensure detainees reasonable safety from infection.” ECF No. 33 at 20. Because social distancing, which is critical to prevent infection, is impossible at Calhoun, asking whether Defendants are trying
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seeking medical treatment; they are challenging their confinement and seek release. See ECF No. 22 at 12 (describing claim as a “challenge to the continued validity of confinement itself”). Thus, in Prieto Refunjol v. Adducci, No. 2:20-CV-2099, 2020 WL 2487119, at *16 (S.D. Ohio May 14, 2020), the court applied the punishment test to release claims and the deliberate indifference test to medical claims. “Because petitioners’ claim for release “has nothing to do with the quality of medical care that they received, or might receive, in ICE custody” but rather “exclusively pertains to the risk that they might contract COVID-19 and the consequences that could potentially flow from such an infection,” the appropriate standard is whether petitioners “would suffer unconstitutional ‘punishment’ in ICE detention, not whether ICE has been deliberately indifferent to their care.” Id. IV. If the Court Resorts to the Deliberate Indifference Test, It Should Apply
Only the Objective Component Of That Test. Should this Court reject the punishment test, it should not apply the Eighth Amendment’s subjective deliberate indifference test, but strictly an objective test.8
to stop the spread of COVID-19, or trying hard enough, is somewhat beside the point. Unlike in Butler, where the plaintiff’s claim was that Defendants failure to take particular precautions, Plaintiffs here allege that they must be released because, given the nature of COVID-19, they cannot be safely detained at Calhoun regardless of what steps Defendants take. 8 While many courts analyzing COVID-release claims by civil detainees have used the punishment test, others that applied the deliberate indifference test have rejected the subjective prong. See e.g., Urdaneta v. Keeton, No. CV-20-00654PHX-SPL (JFM), 2020 WL 2319980, at *8–9 (D. Ariz. May 11, 2020); Favi v.
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As this Court noted, the Sixth Circuit has said that Kingsley “calls into serious doubt”
whether civil detainees must show “wanton disregard” of serious medical needs, and
has indicated that “[w]hether an objective standard applies to pretrial detainee claims
of deliberate indifference and what the standard entails are open questions.”9 ECF
No. 68 at 32 (quoting Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018);
Martin v. Warren Cty. Ky., 799 F. App’x 329, 337 n.4 (6th Cir. 2020)). However,
this Court applied the subjective prong of the test because the Sixth Circuit had done
so in two post-Kingsley cases: J.H., 951 F.3d at 717, 722–23, and Winkler v. Madison
Cty. Ky., 893 F.3d 877, 890–91 (6th Cir. 2018).
J.H. and Winkler (like Richmond and Martin) are distinguishable as medical
treatment cases, and neither discusses Kingsley’s impact on the deliberate indiffer-
ence test for such claims. But, regardless of whether the Sixth Circuit might still
Kolitwenzew, No. 20-CV-2087, 2020 WL 2114566, at *9 (C.D. Ill. May 4, 2020); Pimentel-Estrada, 2020 WL 2092430, at *11; Mays v. Dart, No. 20 C 2134, 2020 WL 1987007, at *23–24 (N.D. Ill. Apr. 27, 2020); Essien v. Barr, No. 20-CV1034-WJM, 2020 WL 1974761, at *3–4 (D. Colo. Apr. 24, 2020); Banks v. Booth, No. CV 20-849 (CKK), 2020 WL 1914896, at *5–6 (D.D.C. Apr. 19, 2020). 9 Kingsley casts doubt not just on applying the subjective prong of the deliberate indifference test to civil detainees, but also on considering, as part of the objective component, whether a risk is “one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). That principle derives from the requirement that one must look to “contemporary standards of decency” in determining whether punishment violates the Eighth Amendment. Id; see also Rhodes v. Chapman, 452 U.S. 337, 343 (1981). The contemporary-standards-ofdecency analysis has no place in analyzing civil detention.
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apply the subjective prong to medical treatment claims, Kingsley makes clear that objective evidence is all that is needed not only for excessive force claims but also for claims arising from punitive conditions. Indeed, the Supreme Court, in rejecting the subjective test for excessive force claims, looked to Bell, noting that it applied an “objective standard” to evaluate detention conditions, and “did not consider the prison officials’ subjective beliefs about the policy.” Kingsley, 135 S. Ct. at 2473. A pretrial detainee thus “can prevail by providing only objective evidence.” Id.
The Sixth Circuit itself, although it applied the Eighth Amendment deliberate indifference test without discussion in several post-Kingsley medical treatment cases, has applied either the punishment test or an objective test to other types of claims by civil detainees. See J.H., 951 F.3d at 717–18 (applying punishment test to conditions claims); Harris v. Davidson Cty. Sheriff, No. 19-5041, 2019 WL 7573883, at *2–3 (6th Cir. Dec. 11, 2019) (applying objective test to excessive force claim but subjective test to medical claims). And district courts in this circuit have read Kingsley to preclude use of the subjective test even for medical claims. See, e.g., Love v. Franklin Cty., Ky., 376 F. Supp. 3d 740, 745–46 (E.D. Ky. 2019) (applying objective test and noting that none of Sixth Circuit’s post-Kingsley cases address whether deliberate indifference test should be amended after Kingsley).
Even absent Kingsley, there is a separate reason why Defendants’ focus on the subjective prong of the deliberate indifference test is misguided: this is a case
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seeking prospective relief, not damages. The Supreme Court has held that if “the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack of awareness.” Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1970). Similarly, in cases involving “future conduct to correct prison conditions,” the Sixth Circuit has said that “[i]f those conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective prong because the same information that would lead to the court’s conclusion was available to the prison officials.” Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004). V. Plaintiffs’ Detention is Unconstitutional Under Any of the Tests.
Plaintiffs meet whichever test the Court applies: the Eighth Amendment deliberate indifference test, the objective test, and the punishment test.10 Indeed, with respect to deliberate indifference, the Court has already found that both the objective and subjective components are satisfied for medically vulnerable detainees. See ECF No. 68. Plaintiffs here are similarly at high risk. See Section II.
Under the punishment test, this Court must decide whether the government’s interests “outweigh[] the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. During this pandemic, detention is no longer solely a deprivation of liberty but also highly likely to result in contraction
10 The Court may wish to consider the tests in the alternative given the state of the law.
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of a dangerous illness, and a deprivation of life itself. Conversely, the government’s
interest in keeping people detained is greatly weakened: its ability to remove people
has decreased dramatically given the breakdown in international travel, border
closures, and obstacles to obtaining the necessary paperwork to process removals.
Plaintiffs are not generally contesting the government’s interest in using
detention. Rather, they argue that, because during the COVID-19 pandemic there is
no way to ensure Plaintiffs’ reasonable safety at Calhoun, their detention is no longer
reasonably related to, and is excessive in relation to, the government’s interests.11
As explained in Pimentel-Estrada, 2020 WL 2092430, at *17:
Although Petitioner’s initial detention could not be described as punitive, the situation has drastically changed given the unique and unprecedented threat posed by COVID-19. . . . Petitioner has established a likelihood that he is being held in conditions that create a substantial risk of serious and potentially permanent, irreparable harm due to his age and underlying health conditions. These conditions create far more serious consequences for Petitioner than are justified by Respondent’s need to ensure his presence at removal, should that be the ultimate outcome of his proceedings.
Or as another court said, in finding detention punitive:
[C]onsider if civil detainees were being housed in a facility in the direct path of a hurricane and that the facility was unlikely to withstand the force of the
11 “[C]ourts have the authority to order those detained in violation of their due process rights released” regardless of whether immigration statutes require their detention. See Basank v. Decker, No. 20 Civ. 2518-AT, 2020 WL 1481503, at *6 (S.D.N.Y. Mar. 26, 2020); Pimentel-Estrada, No. C20-495 RSM-BAT, 2020 WL 2092430, at *18 (W.D. Wash. Apr. 28, 2020); Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417, at *10 n.4, 13 (S.D.N.Y. Apr. 27, 2020); Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020).
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storm. The government would still have a legitimate governmental interest in ensuring that the detainees appeared for immigration court – but the government would not have a legitimate interest in housing the detainees in that particular facility during the hurricane. COVID-19, and its associated risks, is the difference maker – it changes the equation in evaluating the government’s legitimate objectives. Rafael L.O. v. Tsoukaris, No. 20-3481-JMV, 2020 WL 1808843, at *7 (D.N.J. Apr. 9, 2020); Prieto, 2020 WL 2487119 at *20; Galan-Reyes, 2020 WL 249713, at *4 (S.D. Ill. May 14, 2020). The same reasoning applies here.
The continued detention of Mr. Rosales Borboa and Ms. Rodriguez Salabarria is particularly unreasonable given their medical vulnerabilities and, for Ms. Rodriguez Salabarria, the length of her detention. See J.H., 951 F.3d at 718-19 (considering the plaintiff’s special vulnerability, as well as the nature and duration of his confinement, in determining that solitary confinement was punitive). Indeed, Ms. Rodriguez Salabarria has already been detained for about 9 months and there is no significant likelihood that she will be removed in the reasonably foreseeable future. See ECF No. 43 at ¶¶ 187–88. Nor is there any evidence that either Plaintiff cannot be safely supervised in the community. See J.H., 951 F.3d at 718 (finding solitary confinement “excessively ‘harsh . . . to achieve objectives that could be accomplished [with] . . . alternative and less harsh methods’”) (quoting Bell, 441 U.S. at 539 n.20). VI. Conclusion
The Court should grant Plaintiffs’ Motion and order their immediate release.
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Dated: May 18, 2020
Respectfully submitted,
_/_s_/_M__ir_ia_m__J_._A__u_k_er_m__a_n____ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* ACLU Foundation Immigrants’
Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo ACLU Foundation Immigrants’
Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

16

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP _/_s_/ _Je_a_n_n_i_e_S_._R__h_ee___ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com Jonathan M. Silberstein-Loeb Katherine W. Gadsden* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com Attorneys for Plaintiffs * Application for admission forthcoming
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CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on May 11, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. I also caused true and correct copies of the foregoing document as well as un-redacted copies of the declarations and exhibits filed therewith to be served by electronic mail on counsel for Defendants.
Respectfully submitted,
_/_s/_J_e_a_n_n_i_e_S_._R_h_e_e__________

Case 5:20-cv-10829-JEL-APP ECF No. 82-1 filed 05/18/20 PageID.2441 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7

INDEX OF EXHIBITS Declaration of Emanuel Rosales Borboa Declaration of Jennipher L.M. Colthirst, Esq. Declaration of Aaron E. Haier Declaration of Dr. Whitney Lieb Declaration of My Khanh Ngo, Esq. Declaration of Dr. Katherine Peeler Declaration of Dr. Homer Venters

Case 5:20-cv-10829-JEL-APP ECF No. 82-2 filed 05/18/20 PageID.2442 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
-againstREBECCA ADDUCCI, et al.,
Respondent-Defendants.

No. 5:20-cv-10829-JEL-APP

DECLARATION OF EMANUEL ROSALES BORBOA IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-2 filed 05/18/20 PageID.2443 Page 2 of 5
I, Emanuel Rosales Borboa certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Emanuel Rosales Borboa. I make these statements based upon my personal knowledge.
2. I am a thirty five-year-old Mexican national who has been detained since March 9, 2020. For the majority of this time, I was detained at Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan. On May 7, 2020 I was moved to Wayne County Jail in Detroit, Michigan for a hearing in my criminal case. Due to technical difficulties with the video conference technology, the hearing was cancelled and rescheduled for June 1, 2020.
3. I am a
4. The first time I recall
5. a)
. b)
2

Case 5:20-cv-10829-JEL-APP ECF No. 82-2 filed 05/18/20 PageID.2444 Page 3 of 5
c)
6. 7. 8. 9.
3

Case 5:20-cv-10829-JEL-APP ECF No. 82-2 filed 05/18/20 PageID.2445 Page 4 of 5
his has been difficult, especially now that I have been moved to Wayne County Jail, where the climate has been humid, hundreds of individuals have tested positive for COVID-19, the cells are infested with bugs, and I am without my personal belongings, which remain at Calhoun. 10.I am currently contesting criminal charges for carrying a concealed weapon. At a bail hearing in my criminal case, Magistrate Joseph A. Boyer set my bail at $1,000, personal. Despite my family’s attempts to post bail, I was not released because Immigration and Customs Enforcement (“ICE”) had placed a detention hold on me. If released from ICE’s custody, I would be able to post bail in my criminal case, which was set at $1,000. My siblings will be able to transport me by car to our home in Allen Park, Michigan. At home, I will be able to get medical treatment for my asthma while maintaining a safe distance from others and quarantining as necessary. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 17th day of May 2020.
/s/ Emanuel Rosales Borboa Emanuel Rosales Borboa
4

Case 5:20-cv-10829-JEL-APP ECF No. 82-2 filed 05/18/20 PageID.2446 Page 5 of 5
ATTORNEY DECLARATION Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to practice in the State of New York. On May 17, 2020 I personally spoke with Emanuel Rosales Borboa and read this declaration to him during a video conference. Emanuel Rosales Borboa told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf. I declare under penalty of perjury, pursuant to 28 USC § 1746, that the foregoing is true and correct. /s/ J.T. Parker Murray J.T. Parker Murray Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-2192 pmurray@paulweiss.com
5

Case 5:20-cv-10829-JEL-APP ECF No. 82-3 filed 05/18/20 PageID.2447 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

DECLARATION OF JENNIPHER L.M. COLTHIRST, ESQ. IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR
A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-3 filed 05/18/20 PageID.2448 Page 2 of 2

Case 5:20-cv-10829-JEL-APP ECF No. 82-4 filed 05/18/20 PageID.2449 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

DECLARATION OF AARON E. HAIER IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-4 filed 05/18/20 PageID.2450 Page 2 of 4
I, Aaron E. Haier, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Aaron E. Haier. I am over the age of 18 and I am competent to make this declaration.
2. I am an associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP.
3. I respectfully submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order. The purpose of this Declaration is to explain the analysis I undertook of the “Housed Inmate List” (ICE000001–45) that Defendants produced in this action.
4. The Housed Inmate List contains data for the period covering March 1, 2020 to May 2, 2020. It includes columns showing the full name of each detainee housed at Calhoun County Correctional Center, their citizenship, identification number, race/sex, date of birth, booking date, the number of days they have spent in jail, and the pod in which they were housed each week.
5. To analyze the Housed Inmate List, I first transferred the data from the document Defendants produced to an Excel workbook.
6. Once the data was entered into an Excel spreadsheet, I organized it by week in keeping with the manner in which Defendants produced it.
2

Case 5:20-cv-10829-JEL-APP ECF No. 82-4 filed 05/18/20 PageID.2451 Page 3 of 4
7. Using Excel, I was able to generate a pivot table that shows in which pods the detainees were housed and when they were housed in each particular pod.
8. Based on that data, I then created another table that showed for how many weeks each individual detainee was housed in a particular pod.
9. From these tables, it is possible to see that, on March 14, Mr. Borboa was first housed in Pod H with 13 other detainees. By March 21, he had been moved to Pod M and was housed with 20 other detainees, 11 of whom had moved with him from Pod H. By March 28, he was back in Pod H.
10. I was also able to ascertain that, on March 2, when 14 new detainees arrived at Calhoun, 13 were housed in Pod A and one in Pod M, but both Pods A and M already housed several individuals.
11. I was also able to determine that there were at least 200 transfers between pods in the approximately two-month period for which we have data.
12. There were also at least 42 inmates who were transferred between pods within their first two weeks in the facility. Almost all of these transfers were on or before April 4.
13. I was also able to determine that while detainees were sometimes moved in groups from one pod to the next, the groups did not remain intact as
3

Case 5:20-cv-10829-JEL-APP ECF No. 82-4 filed 05/18/20 PageID.2452 Page 4 of 4
a closed unit, as they either joined pods where other detainees were already housed or other detainees from different pods joined them in the new pod.
14. Although Plaintiffs’ discovery requests ask for daily logs, Defendants only produced information for one day each week over for a period of 10 weeks. If we had daily logs, we might be able to ascertain if there were multiple transfers within a given week. Weekly logs do not account for this possibility, making the above estimates very conservative.
15. Should the Court desire, Plaintiffs can provide an Excel document containing the relevant data. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 18th day of May 2020 in New York, New York.
/s/ Aaron E. Haier Aaron E. Haier
Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Ave. of the Americas New York, NY 10019 Tel: (212) 373-3900 Fax: (212)757-3990
4

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2453 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff,

- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

DECLARATION OF DR. WHITNEY LIEB IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2454 Page 2 of 6
I. Expert Qualifications 1. I am an Assistant Professor of Obstetrics and Gynecology at the Icahn
School of Medicine at Mount Sinai Hospital, a board certified OBGYN, and a fellow of the American College of Obstetricians and Gynecologists. As part of my practice, I care for patients with multiple chronic health conditions, including diabetes, hypertension, and obesity.
2. In addition to my regular OBGYN practice at Mount Sinai, I have been an active member for three years of Physicians for Human Rights, an organization dedicated to pairing health professionals with victims of torture to conduct medical evaluations, and to investigate the health consequences of human rights violations. I am also a voluntary forensic examiner at the Mount Sinai Human Rights Program (MSHRP) and the Weill Cornell Center for Human Rights (WCCHR). The focus of my volunteer efforts is pro bono evaluations of applications for asylum in the United States based on medical conditions. II. Instructions, Materials Considered, and Summary of Conclusions
3. At the request of the ACLU and Paul, Weiss, Rifkind, Wharton & Garrison LLP, I reviewed the medical records of Damary Rodriguez Salabarria, an individual currently being detained at Calhoun County Correctional Center. I submit this declaration to summarize my medical opinions.
2

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2455 Page 3 of 6

4. Anna Cornelius-Schecter, a medical student at Weill Cornell Medical

School and member of the WCCHR, assisted me in the review of Ms. Rodriguez

Salabarria’s medical records and in the preparation of this declaration.

5. My opinions are based on my review of Ms. Rodriguez Salabarria’s

medical records, the Supplemental Declaration of Dr. Homer Venters dated May 5,

2020 (ECF No. 57-2), and the Declaration of Joseph S. Hughes, Ms. Rodriguez

Salabarria’s lawyer, dated April 26, 2020 (ECF No. 44-10). I neither performed a

physical examination of Ms. Rodriguez Salabarria, nor did I speak with her directly.

6. I have also read the Declaration of Dr. Homer Venters dated May 18,

2020.

is among the

medical conditions that put people at high risk of severe infection or death from

COVID-19.

7. I have been instructed to focus on Ms. Rodriguez Salabarria’s

and to address whether

places her at high risk of

severe infection or death from COVID-19. I note, however, that Ms. Rodriguez

Salabarria has

3

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2456 Page 4 of 6

Her overall medical conditions increase the likelihood

of an adverse outcome if she contracts COVID-19.1,2

8. For the reasons explained below, my professional opinion is that Ms.

Rodriguez Salabarria’s

does put her at high risk of severe infection or

death from COVID-19. Given her higher risk for severe infection, illness, and death,

I support her request for immediate release from detention.

III. Ms. Rodriguez Salabarria’s Medical History and Risk

9. Ms. Rodriguez Salabarria’s

puts her at high risk

of severe infection or death from COVID-19.1,3 These outcomes include severe

illness (including respiratory and cardiac failure).

10. Ms. Rodriguez Salabarria’s medical history

is

summarized below:

a.

1 Mary L. Adams, David L. Katz, Joseph Grandpre, Population-Based Estimates of Chronic Conditions Affecting Risk for Complications from Coronavirus Disease, United States, 26 Emerging Infectious Diseases J. (2020), available at: https://wwwnc.cdc.gov/eid/article/26/8/20-0679_article.
2 Jennifer Lighter et al., Obesity in patients younger than 60 years is a risk factor for Covid-19 hospital admission, Clinical Infectious Disease (2020).
3 Center for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html.
4

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2457 Page 5 of 6

b.

A recently released CDC study,
“estimated that 45.4 percent of US adults are at increased risk for
complications from coronavirus disease because of cardiovascular disease, diabetes, respiratory disease, hypertension, or cancer.”8 These findings are consistent with other research.9

c. Ms. Rodriguez Salabarria is also

The CDC’s guidelines indicate that

a

alone makes a person high risk and recent research has

4 Food and Drug Administration, Zestril (Lisinopril) (May 20, 2009), https://www.accessdata.fda.gov/drugsatfda_docs/label/2009/019777s054lbl.pdf.
5 Safiya Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area JAMA (2020).
6 Bolin Wang et al., Does comorbidity increase the risk of patients with COVID19: evidence from meta-analysis, 12 Aging 6049 (2020), available at: https://www.aging-us.com/article/103000/text.
7 Wei-jie Guan et al., Comorbidity and its impact on 1590 patients with Covid-19 in China: A Nationwide Analysis, 55 European Respiratory J. (2020), available at: https://erj.ersjournals.com/content/early/2020/03/17/13993003.00547-2020.
8 Adams ML, Katz DL, Grandpre J. Population-based estimates of chronic conditions affecting risk for complications from coronavirus disease, United States. Emerg Infect Dis. 2020 Aug https://wwwnc.cdc.gov/eid/article/26/8/200679_article.
9 CDC, supra note 3; Tao Chen et al., Clinical characteristics of 113 deceased patients with coronavirus disease 2019: retrospective study, 368 BMJ 1 (2020), available at: https://www.bmj.com/content/bmj/368/bmj.m1091.full.pdf; Parag Goyal et al., Clinical Characteristics of Covid-19 in New York City, New Eng. J. of Med. (2020), available at: https://www.nejm.org/doi/full/10.1056/NEJMc2010419; Safiya Richardson, supra note 5.
5

Case 5:20-cv-10829-JEL-APP ECF No. 82-5 filed 05/18/20 PageID.2458 Page 6 of 6

PRIVILEGED & CONFIDNETIAL

ATTORNEY WORK PRODUCT

found that

were 1.8-2.0 times

mfoournedlitkhealty to be admitted to acute and critical carewunerites1c.o8m-2p.0arteidmteos

more likely individuals

o acute and critical care units compared to as a risk factor for poor outcomes from

CinOdVivIiDdu-1al9s.1100,1,111 COVID-19.

as a risk factor for poor outcomes from

IIVV.. CCoonncclluussiioonnaannddRReeccoommmmeennddaattiioonnss:: IImmmmeeddiiaattee RReelleeaassee iiss NNeecceessssaarryy ttoo PPrreevveennttSSeerriioouussHHaarrmmttooMMss..RRooddrriigguueezz SSaallaabbaarrrriiaa

11. For the reasons above, it is my professional opinion that, because of her 11. For the reasons above, it is my professional opinion that, because of her

, Ms. Rodriguez Salabarria is at high risk of severe infection or death , Ms. Rodriguez Salabarria is at high risk of severe infection or death

from COVID-19. Ms. Rodriguez Salabarria’s from COVID-19. Ms. Rodriguez Salabarria’s

exacerbates the risk of severe exacerbates the risk of severe

infection or death, and the conditions at Calhoun reported in the Declarations of Dr. infection or death, and the conditions at Calhoun reported in the Declarations of Dr.

Venters and Mr. Hughes put Ms. Rodriguez Salabarria at greater risk of contracting Venters and Mr. Hughes put Ms. Rodriguez Salabarria at greater risk of contracting

COVID-19. COVID-19.

VV.. EExxppeerrttDDiisscclloossuurreess

12. None. 12. None.

I declare under penalty of perjury that the foregoing is true and correct. I declare under penalty of perjury that the foregoing is true and correct. Executed this 18th day of May, 2020. Executed this 18th day of May, 2020.

_________________________ WWhhiittnneeyy EE.. LLiieebb,, MMDD MMPPHH

10 10

Jennifer Lighter et al.,Obesity in patients younger than 60 years is a risk factor

Jennifer Lighter et al.,Obesity in patients younger than 60 years is a risk factor

for Covid-19 hospital admission, Clinical Infectious Disease (2020).

11 11

SSfoaafrfiiCyyaoavRRiidicc-hh1aa9rrdhdsosoosnpn,i,tssauulpparrdaamnniosotsteieo55n.., Clinical

Infectious

Disease

(2020).

6 6

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2459 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Defendant-Defendants.

DECLARATION OF MY KHANH NGO, ESQ. IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A
TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2460 Page 2 of 7
I, My Khanh Ngo, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is My Khanh Ngo. I am over the age of 18 and I am competent to make this declaration.
2. I am a Staff Attorney with the American Civil Liberties Union Foundation, Immigrants’ Rights Project, and I am one of the counsel of record for Plaintiffs.
3. I respectfully submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order. The purpose of this Declaration is to identify certain documents relevant to Plaintiffs’ Supplemental Brief.
a. Attached as Exhibit A is a true and correct copy of the medical records Defendants produced for Emmanuel Rosales Borboa.
b. Attached as Exhibit B is a true and correct copy of additional medical records for Emmanuel Rosales Borboa from the Community Health and Social Services Center in Detroit.
c. Attached as Exhibit C is a true and correct copy of ICE000001000045.1
d. Attached as Exhibit D is a true and correct copy of ICE000415.
1 References to “ICE_____” refer to documents Defendants produced on May 11, 2020 pursuant to this Court’s Order dated April 30, 2020. See ECF No. 53. 2

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2461 Page 3 of 7
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 18th day of May, 2020, in Oakland, California. /s/ My Khanh Ngo My Khanh Ngo American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org
3

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2462 Page 4 of 7
EXHIBIT A
FILED UNDER SEAL

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2463 Page 5 of 7
EXHIBIT B
FILED UNDER SEAL

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2464 Page 6 of 7
EXHIBIT C
FILED UNDER SEAL

Case 5:20-cv-10829-JEL-APP ECF No. 82-6 filed 05/18/20 PageID.2465 Page 7 of 7
EXHIBIT D
FILED UNDER SEAL

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2466 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
-againstREBECCA ADDUCCI, et al.,
Respondent-Defendants.

No. 5:20-cv-10829-JEL-APP

DECLARATION OF DR. KATHERINE PEELER IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY
RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2467 Page 2 of 23
Katherine Ratzan Peeler, MD Division of Medical Critical Care Boston Children’s Hospital 333 Longwood Avenue, LO 011 Boston, Massachusetts 02115 office 617-919-1454| fax 888-883-9238
Declaration of Dr. Katherine Peeler (MD, FAAP)
Pursuant to 28 U.S.C. § 1746, I hereby declare as follows:
I. Background
1. My name is Dr. Katherine Peeler. I am a medical expert for Physicians for Human Rights (PHR) and instructor of pediatrics at Harvard Medical School. I am a pediatric critical care physician at Boston Children’s Hospital where I am a staff physician in the Division of Medical Critical Care. As a Fellow of the American Academy of Pediatrics, I completed my residency training at the University of Michigan Pediatrics Residency program. I completed my fellowship training in pediatric critical care medicine at Boston Children’s Hospital, where I also served as chief fellow. I received my medical degree from The Geisel School of Medicine at Dartmouth.
2. I am the faculty leader for the Harvard Student Human Rights Collaborative, a role in which I supervise and advise medical students in activities related to promoting health as a human right. In addition, I am the medical director of the Harvard Medical School Asylum Clinic, which focuses on medical-legal issues of asylum seekers, including immigration detention. I have written extensively and given talks and lectures about such issues nationally and internationally. In my role as a medical expert at PHR, I have performed dozens of forensic evaluations of pediatric and adult asylum-seeker cases, testifying to the consistency between their physical and psychological scars and their histories of trauma for which they seek asylum, including for asylum seekers in detention. In this same role, I have also researched, written about, and been interviewed about the health
2

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2468 Page 3 of 23
of immigrants in federal custody.1 I am regularly quoted in the media as an expert on child and family detention.2
3. As an attending physician at Boston Children’s Hospital, I work with a diverse population, routinely taking care of patients aged newborn through their 40s, some previously healthy, many with a background of medical complexity, and with myriad socioeconomic backgrounds, hailing from all 50 states and many countries around the world. I routinely come into contact with victims of abuse, trauma, and poverty, where I regularly assess their medical as well as psychosocial needs in the context of their and their family’s social determinants of health (such as housing and food insecurity). Of note, the intensive care unit (ICU) in which I attend is the specialty asthma ICU for the hospital, so I am very familiar with this disease process and its myriad presentations.
4. My CV is attached as Exhibit A.
1 See, e.g., Katherine Peeler, “Thousands Of Immigrant Kids Are Detained, Far From Their Parents. They Need Protection From COVID19, Too,” Cognoscenti (Mar. 20, 2020), https://www.wbur.org/ cognoscenti/2020/03/20/ migrant-kids-coronavirus-covid-19-katherinepeeler; Katherine Peeler, “Forced Family Separation Isn't Just Traumatic. It's Torture,” Cognoscenti (Feb. 28, 2020), https://www.wbur.org/ cognoscenti/2020/02/28/p-h-r-family-separation-katie-peeler; Katherine Peeler, et al. “Sleep Deprivation of Detained Children: Another Reason to End Child Detention,” Health and Human Rights Journal (Jan. 20, 2020).
2 Kate Smith, 12 detained babies have been released from ICE custody in Dilley, Texas, CBS News (Mar. 4, 2019), https://www.cbsnews.com/ news/ immigrant-children-detained-12-babies-released-from-ice-custodydetention-center-dilley-texas-2019-03-04/; Tina Vasquez,‘It’s Horrifying to Think About’: Migrants and Their Young Children Are Held in Isolation at Family Detention Centers, Rewire News (Mar. 5, 2019), https://rewire.news/article/2019/03/05/its-horrifying-to-think-aboutmigrants-and-their-young-children-are-held-in-isolation-at-familydetention-centers/; Jack Herrera, A fifth migrant child died in US custody. Why does this keep happening?, Pacific Standard (May 20, 2019), https://psmag.com/news/a-fifth-migrant-child-died-in-u-s-custody-whydoes-this-keep-happening.

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2469 Page 4 of 23
5. In preparation for this declaration, I have reviewed Mr. Emanuel Rosales Borboa’s medical records while in immigration his medical records as a child from Community Health and Social Services Center from January 11, 1996 to March 14, 2002, the April 24, 2020 Declaration of Ms. Caterina Amaro-Luedtke, and the May 17, 2020 Declaration of Mr. Emanuel Rosales Borboa.
II. Description of Emanuel Rosales Borboa’s 6.
7.
8.

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2470 Page 5 of 23
9.

10.Mr. Rosales Borboa’s Declaration
that most people need to do as part of a routine day. 11.Mr. Rosales Borboa’s Declaration

– an activity

12.On Mr. Rosales Borboa’s “Initial Medical and TB screening” form for Calhoun County Correctional Facility from March 10, 2020, it states
13.The photographs

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2471 Page 6 of 23

III. Analysis and Recommendations
14.I have reviewed the declaration of Dr. Homer Venters dated May 18, 2020, and I agree with his description of how to assess a patient

15.

Specific criteria define each

categorization of this disease. Importantly, all information must be

available to make an accurate diagnosis. If all accurate information is

not available, it is common medical practice to assume a higher level

of severity until proven otherwise in order to appropriate treat and

maintain the safety of any given patient

can be a fatal

disease.

16.

17.Mr. Rosales Borboa describes

18.Mr. Rosales Borboa’s

19.Mr. Rosales Borboa’s

places him in the

group of individuals at high-risk of severe COVID-19 as outlined by

the CDC.

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2472 Page 7 of 23
IV. V. Expert Disclosures 20.I declare under penalty of perjury that the foregoing is true and correct, executed this 18 day of May, 2020 in Boston, MA.
Katherine Peeler, M.D, FAAP

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2473 Page 8 of 23
Exhibit A

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2474 Page 9 of 23
1
Faculty of Medicine of Harvard University Curriculum Vitae
Date Prepared: April 15, 2020 Name: Katherine Ratzan Peeler Office Address: 333 Longwood Avenue, LO 011 Work Phone: (617) 919-1454 Work E-Mail: katherine.peeler@childrens.harvard.edu

Education

05/2002

BA (magna cum laude)

05/2004

Post-baccalaureate pre-medical program

06/2010

MD

History Pre-medical studies Medicine

08/2017
Class of 2021

Certificate in Clinical Clinical Effectiveness/Public Health Effectiveness

MA

Medical Anthropology

(Arthur Kleinman)

Georgetown University
University of Connecticut
Geisel School of Medicine at Dartmouth Harvard School of Public Health Harvard University Graduate School of Arts and Sciences

Postdoctoral Training
06/10 - 06/11 Intern

Pediatrics

07/11 - 06/13 Resident

Pediatrics

07/13 - 06/16 Clinical Fellow Pediatric Critical Care

University of Michigan Mott Children's Hospital
University of Michigan Mott Children's Hospital
Boston Children's Hospital, Harvard Medical School

Faculty Academic Appointments

07/16 Present

Instructor

Pediatrics

Harvard Medical School

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2475 Page 10 of 23
2

Appointments at Hospitals/Affiliated Institutions

Current 07/16 Present

Assistant in Medicine

Pediatrics (Medicine Critical Care)

Boston Children's Hospital

Other Professional Positions

2005 - 2010

National Student Advisory Board Member

2011 Present

Asylum Network Physician and Expert Consultant

2015 Present

Trustee

Physicians for Human Rights 15 days per month

Physicians for Human Rights 15 days per month

Boston Medical Library

14 days per year

Major Administrative Leadership Positions

Local 2005 - 2007
2006 - 2007
2009
2014 - 2016
2015 - 2016
2016 Present 2016 Present 2017 Present 2017 - 2018

Medical Anthropology Elective CoDirector

Dartmouth Medical School

Cross-disciplinary Perspectives on the Occurence and Ramifications of Torture Conference Organizer

Dartmouth Medical School

Health, Human Rights and Humanitarian Dartmouth Medical School Assistance Elective Co-Director

Senior Fellow for Evidence Based Medicine

Boston Children's Hospital (Anesthesiology, Perioperative, and Pain Medicine, Division of Critical Care Medicine)

Chief Fellow

Boston Children's Hospital (Anesthesiology, Perioperative, and Pain Medicine, Division of Critical Care Medicine)

Clinical Metabolism Liaison

Boston Children's Hospital (Division of Medicine Critical Care)

Faculty Advisor, Harvard Student Human Rights Collaborative

Harvard Medical School

Medical Director, Harvard Medical School Asylum Clinic

Harvard Medical School

Community and Global Medicine Academy Leader

BCRP – Boston Combined Residency Program in Pediatrics

Case 5:20-cv-10829-JEL-APP ECF No. 82-7 filed 05/18/20 PageID.2476 Page 11 of 23
3

2017 - 2018 Physician Champion for iPASS

2018 Present

Faculty Coordinator, Morbidity and Mortality

Boston Children's Hospital (Division of Medicine Critical Care)
Boston Children's Hospital (Division of Medicine Critical Care)

National 2009 - 2011

National Conference Organizer

Physicians for Human Rights

Professional Societies

2009 Present

American Academy of Pediatrics (AAP)
2010 - 2013
2011 - Present
2016 - Present 2016 - Present 2016 - Present

Resident Delegate from University of Michigan Member, Section on International Child Health Fellow Member, Section on Critical Care Member, Massachusetts Chapter

2012 Present

Society of Critical Care Medicine

2013 Present

Massachusetts Medical Society

2015 - 2017 American Medical Association (AMA)

2019 Present

Society of Refugee Healthcare Providers

2019 Present

American Anthropological Association 2019 - Present

Member, Section of Medical Anthropology

Editorial Activities

Ad hoc Reviewer Boston Children's Hospital Department of Medical Education Hospital Pediatrics British Journal of Surgery Globalization and Health OPENPediatrics

Honors and Prizes

2002

Honor Society Member Alpha Sigma Nu - National Jesuit Honor Society

Academic merit

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2002 2002 2002 2006
2007 2008 2008
2008 2009 2009
2009 2010 2010
2010
2011 2013

Honor Society Member Phi Alpha Theta - National History Honor Society
Honor Society Member Pi Delta Phi - National French Honor Society
Honor Society Member Psi Chi - National Psychology Honor Society
Urban Health Scholar Dartmouth Medical School

Merit Scholar
International travel award
Albert Schweitzer Fellow for Life

Kenneth and Bessie Ladeau Trust Ohiyesa Foundation
Albert Schweitzer Fellowship

National Tylenol Scholar

Tylenol: Johnson & Johnson Consumer Inc

International travel award

Ohiyesa Foundation

Ford von Reyn Research Fellowship in Global Health

Dartmouth Hitchcock Medical Center Division of Infectious Disease and International Health

Honor Society Member Gold Humanism in Medicine Honor Society

Martin Luther King Jr. Dartmouth College Social Justice Award

John F. Radebaugh Community Service Award

Dartmouth Medical School Department of Community and Family Medicine

Leonard Tow

The Arnold P. Gold Foundation

Humanism in Medicine

Award

Pediatric Intern-of-the- University of Michigan Pediatric

Year

Residency

James Maitland Simpson Award

University of Michigan Pediatric Residency

Academic merit
Academic merit
Academic merit
Competitively selected to a group of medical students dedicated to urban and underserved populations.
Travel grant awarded for clinical work in Honduras. Selected as one of four U.S. medical students to complete a three-month clinical rotation in Gabon National merit scholarship
Travel grant awarded for clinical work in Haiti. Two-month research fellowship in Dar es Salaam, Tanzania
Presented to a resident completing his/her training recognized for a unique contribution to the training program.

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2015

Von L. Meyer Award Boston Children's Hospital

2016 Present
2018 2019
2018 Present 2019

Boston Children's Hospital Academy for Teaching and Educational Innovation and Scholarship

Boston Children's Hospital

Boston Combined Residency Program Faculty Teaching Honor Roll

Boston Combined Residency Program

Boston Children's Hospital Teaching Certificate Program

Boston Children's Hospital Department of Medical Education

The Geisel School of Medicine Young Alumni Award

The Geisel School of Medicine at Dartmouth

2019

Harvard Medical School Dean's Community Service Faculty Award

Harvard Medical School

Travel grant awarded for clinical work in Guatemala.
Awarded for exemplifying the values of advocacy, education, and compassion in my work with asylumseekers. Awarded for dedication and commitment to community service for my work with the non-profit Physicians for Human Rights

Report of Funded and Unfunded Projects

Current Unfunded Projects
2015 - 2020 Unexpected Death in Pediatric Intensive Care: Defining a Population and its End-ofLife Care Management Principle Investigator This study encompasses a review of all deaths from 2010-2015 in the medical surgical intensive care unit of Boston Children's Hospital to identify children who die from unexpected causes in order to better understand the end-of-life care we deliver to those patients and their families.

2016 Present

Vancomycin clearance and 24-hour area under the curve in critically ill children Co-Investigator This is a prospective cohort study of critically ill children receiving vancomycin. We aim to correlate vancomycin AUC:MIC ratios with trough values using patient specific parameters as a means of informing future pediatric practice to hopefully reduce drug exposure, adverse events, and costs associated with treatment of serious infections.

2019 Present

Dual loyalties and dual directives: the shifting morality of care for child immigrants in the United States Principle investigator This projects looks at the experience and role of various providers of care in the child immigration system, from judges to staff at detention facilities, to clinical providers

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6

2020 Present

such as physicians and psychologists. These care providers often try to fulfill conflicting mandates from their roles as protectors of children to their roles at government employees. This ethnographic study explores the dual directives placed on such care providers and assess the impact this has on the providers as well as the children under their care.
Emotional Impact of Medical Student Exposure to Forensic Examinations of Asylum Seekers Principle Investigator This is a qualitative survey study of medical students who have participated in forensic medical and psychological evaluations of asylum seekers. The aims of the study are to better understand the emotions students experience as a result of these experiences and any influence these experiences have on their thoughts about the practice of medicine, advocacy, and working with disempowered populations.

Report of Local Teaching and Training

Teaching of Students in Courses

2017 -

Introduction to the Profession: Confidentiality, Social

Present

Media, and Digital Professionalism

First year medical students

2018 Present

Introduction to the Profession: Truth-telling and Confidentiality First year medical students

2019 Present

Essentials of the Profession II: Medical Ethics and Professionalism: Current Controversies in Ethics and Professionalism surrounding Brain Death Fourth year medical students

2019 Present

Essentials of the Profession II: Medical Ethics and Professionalism: Disclosure and Apology after Medical Error and Adverse Events Fourth year medical students

2019 Present

Transition to the PCE: Medical Ethics and Professionalism: Ethical Issues in the Real Relationships of Medical Students and Physicians Second year medical students

2019

Trauma, Refugees, and Asylum Law: U.S. Border Policy and Claims for Protection by Children Law students

2020 Present

Essentials of the Profession I: Medical Ethics and Professionalism First year medical students

Harvard Medical School 4 hours Harvard Medical School 4 hours Harvard Medical School
4 hours per year Harvard Medical School
4 hours per year Harvard Medical School
4 hours per year Harvard Law School Single teaching session Harvard Medical School Intensive month-long course (2-3 hour sessions, twice a week for 4 weeks)

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Formal Teaching of Residents, Clinical Fellows and Research Fellows (post-docs)

2009

Current Treatments for Infantile Spasms

Dartmouth Medical School

Lebanon, New Hampshire,

United States

Medical students, pediatric residents, and pediatric

1 hour

neurology faculty

2009

Neuroradiology of Rasmussen's Encephalitis Radiology faculty, residents, and medical students

Dartmouth Medical School Lebanon, New Hampshire, United States 1 hour

2010

Autoimmune pathogenesis of Type I Diabetes Mellitus and Potential Therapeutics
Pediatric endocrinology faculty, fellows, and nurse practitioners

Connecticut Children's Medical Center Hartford, Connecticut, United States 1 hour

2011

Human Trafficking in the U.S.: Early Intervention Strategies
Pediatric residents and medical students

University of Michigan Mott Children's Hospital Ann Arbor, Michigan, United States 2 hours

2012

Neonatal inborn errors of metabolism: where to start Pediatric residents and neonatology fellows and staff

University of Michigan Mott Children's Hospital Ann Arbor, Michigan, United States 1 hour

2013 Present

Acute Respiratory Failure Pediatric interns

Boston Children's Hospital 1 hour per month

2016 - 2018

Pediatric Intern Orientation: Intern Procedural Skills Simulation Pediatric interns

Boston Children's Hospital 2 hours annually

2016

Crisis Resource Management for Pediatric Interns Pediatric interns

Boston Children's Hospital 4 hours

2017

Pediatric House Staff Retreat: Community and Global Health Careers Pediatric residents

Boston Children's Hospital 1 hour

2020

Global Pediatric Fellows' Seminar: Refugee and Asylum Health Global pediatric and global nursing fellows

Boston Children's Hospital 2 hours per year

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2020 Present

Keystone Advocacy Seminar Series: Considerations for the Care of Immigrant Children Pediatric residents in their Keystone rotation.

Boston Children's Hospital 6 hours per year

Clinical Supervisory and Training Responsibilities
2010 - 2013 Daily teaching and supervision of junior pediatric residents and medical students while on rounds and during patient care in the pediatric inpatient wards.

2013 - 2016
2016 Present

Daily teaching and supervision of pediatric residents, fellows, nurse practitioners and medical students while on rounds and during patient care in the pediatric intensive care unit. Medical students, residents, fellows, and nurse practitioners
Daily teaching and supervision of residents, fellows, nurse practitioners and medical students while on rounds and during patient care in the pediatric medical intensive care unit.

2017 Present

Harvard Medical School students shadow me twice a month to learn how to perform and write up forensic medical evaluations of persons seeking asylum in the United States. This is part of the HMS Asylum Clinic and not a formal clinical rotation as the asylumseekers are not patients. Medical students and residents

University of Michigan Mott Children's Hospital, Ann Arbor, MI 800 hours annually Boston Children's Hospital
1440 hours annually Boston Children's Hospital
1064 hours annually HMS
12 hours per month

Research Supervisory and Training Responsibilities

2016 -

Dartmouth medical students spend two weeks with

Present

me in Boston participating in an intensive reading and

writing elective on the medical professional's role as it

pertains to the U.S. asylum process. During this time,

they also attend classes, symposia, immigration court

and other asylum-related activities while in Boston.

Boston Children's Hospital 15 hours

Formally Mentored Harvard Medical, Dental, and Graduate Students

2019 -

Inkyu Kim, HMS class of 2020 / Medical Student, Harvard Medical School

Present

University-wide Human Rights Curriculum - I have mentored Inkyu ("Q") Kim since he

was a first year medical student. In my role as faculty advisor and medical director of

the HMS Asylum Clinic, I have worked with Mr. Kim to foster his interest in human

rights and to help him bring to fruition several projects he wanted to accomplish while

in medical school. Since we have worked together, Mr. Kim applied for and won a

Harvard Initiative for Learning and Teaching (HILT) pilot grant for his project

"University-wide Human Rights Curriculum." This project aimed to assess the various

human rights-related curricula currently going on Harvard wide and attempt to bring

some of those together in a more unified and accessible fashion to people from

various disciplines. Recently, Mr. Kim wrote an editorial piece in Harvard Medicine

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magazine about ways to advocate for asylum-seekers in the Boston area, and most prominently, he was the lead organizer for the National Student Physicians for Human Rights Conference in September 2019 hosted at HMS (attended by more than 100 students from all over the United States).

Local Invited Presentations

No presentations below were sponsored by 3rd parties/outside entities

2008

Pediatric liver tumors / Grand Rounds

Grand Rounds

Hospital Albert Schweitzer, Lambarene, Gabon

2008

Radiologic Characteristics of PCP Pneumonia / Lecture Case Conference Hospital Albert Schweitzer, Lambarene, Gabon

2008

Pediatric Dental Health / Grand Rounds Grand Rounds Hospital Albert Schweitzer, Lambarene, Gabon

2013

History of Portable Medicine / Lecture Controversies in Pediatric Anesthesia and Critical Care Medicine Anesthesiology, Perioperative, and Pain Medicine, Boston Children's Hospital

2017

Case Conference: A Gay Ugandan Woman Seeking Asylum / Workshop Harvard Student Human Rights Collaborative Case Conference Series Harvard Medical School

2020

The Impact of Human Migration on Child Health and Development / Oral Presentation MGHfC Pediatric Global Health Summit Massachusetts General Hospital

Report of Regional, National and International Invited Teaching and Presentations
Those presentations below sponsored by 3rd parties/outside entities are so noted and the sponsor(s) is identified.

Regional 2015
2017 - 2019

Neurocardiac Interactions / Oral Presentation - Presenter Pediatric Residency Guest Lecturer Series Pediatrics, Dartmouth Hitchcock Medical Center Lebanon, New Hampshire
Forensic Documentation of Asylum Seekers / Lecture - Invited Speaker Physicians for Human Rights Asylum Network Training Harvard Medical School Boston, Massachusetts

National 2009

Staying involved in the health and human rights arena as a senior medical student / Oral Presentation - Panelist Physicians for Human Rights National Conference Providence, Rhode Island

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2009 2010 2016 2016 2016 2017 2018 2020 - 2020

Health and Human Rights Education: A mechanism for HIV/AIDS advocacy skills development / Oral Presentation - Presenter (Selected Oral Abstract) Global Health Education Consortium Annual Conference Seattle, Washington
Bringing Health and Human Rights Electives Into the Medical Education Curriculum / Oral Presentation - Presenter (Selected Oral Abstract) Physicians for Human Rights National Conference Boston, Massachusetts
Pediatric Unexpected Death and End-of-Life Care / Oral Presentation - Presenter (Selected Oral Abstract) Society for Critical Care Medicine National Congress Orlando, Florida
Sudden unexpected deaths in pediatric intensive care units: defining a population and its end-of-life care management / Oral Presentation - Presenter (Selected Oral Abstract) Pediatric Academic Societies Meeting Baltimore, Maryland
Perspectives on a Career in Health and Human Rights / Oral Presentation - Presenter Physicians for Human Rights National Student Conference: Violence Against Difference Geisel School of Medicine at Dartmouth Hanover, New Hampshire (Physicians for Human Rights)
The Importance of Psychological Evaluations in U.S. Asylum Cases: How to Start Your Own Asylum Clinic and Why it Matters / Workshop - Presenter (Selected Oral Abstract) Association for Academic Psychiatry Annual Meeting Denver, Colorado
Multidisciplinary Medical Forensics in U.S. Asylum Cases: How to Start Your Own Asylum Clinic and Why Psychological Evaluations Are Key / Oral Presentation - Panelist (Selected Oral Abstract) American Psychiatric Association Annual Meeting New York, New York
The importance of psychological evaluations in U.S. asylum cases: how to start an asylum clinic in your hospital or medical school / Oral Presentation - Panelist (Selected Oral Abstract) American Psychiatric Association Annual Meeting Philadelphia, Pennsylvania

International 2019

Dual loyalties and dual directives - the shifting morality of care for child immigrants in the United States / Oral Presentation - Author & Presenter (Selected Oral Abstract) American Anthropological Association Annual Meeting Vancouver, Canada

Report of Clinical Activities and Innovations

Current Licensure and Board Certification

2013 Present

Massachusetts Medical License Commonwealth of Massachusetts Board of Registration in Medicine

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2013 Present 2016 Present
2016 - 2019
2016 Present

Certification, Pediatrics American Board Pediatrics
Massachusetts Controlled Substances Registration The Commonwealth of Massachusetts Department of Public Health, Drug Control Program
Federal Controlled Substance Registration Certificate United States Department of Justice Drug Enforcement Administration
Certification, Pediatric Critical Care Medicine American Board Pediatrics

Practice Activities

2010 - 2013

General pediatrics Mott Children's Hospital, University 12 months/year as a

- inpatient and

of Michigan

pediatrics resident

outpatient

2013 - 2016 Intensive Care

Medical Surgical Intensive Care Unit, Boston Children's Hospital

Seven months/year + 4-7 calls/month as a fellow

2016 Present

Intensive Care

Medical Intensive Care Unit, Boston Children's Hospital

14 weeks/year + 3 calls/month as a staff attending

Report of Education of Patients and Service to the Community

Activities

Those activities below sponsored by 3rd parties/outside entities are so noted and the sponsor(s) is

identified.

2011 - Present

Physicians for Human Rights / Asylum Network Physician

Perform exams, write medical affadavits, and serve as an expert witness

for people seeking asylum in the United States as a result of torture or

other trauma inflicted in their home countries. I have performed dozens of

such exams over the last several years.

2015

Global Smile / Volunteer Physician Provided post-operative care after cleft palate repairs for children in Guatemala

2018

Peds RAP / Guest Speaker Served as the primary discussant for an episode of the popular pediatrics podcast Peds RAP for a segment entitled "Medical Care of Asylum Seekers" hosted by Dr. Lisa Patel

2018

Vice News / Medical expert Interviewed about death of toddler previously in ICE custody. Article entitled "This toddler got sick in ICE detention. Two months later she was dead." written by Taylor Dolven and Kathleen Caulderwood in Vice News published on August 27, 2018.

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2018 2019
2019 2019
2019 2019 2019 2019 2019

CARA Pro Bono / Volunteer Physician Performed pro bono forensic medical evaluations of immigrant women seeking asylum detained at a federal detention center in south Texas.
Rewire News / Medical expert Interviewed as medical expert about effects of families and children held in isolation in immigration detention centers. Article entitled "‘It’s Horrifying to Think About’: Migrants and Their Young Children Are Held in Isolation at Family Detention Centers" by Tina Vasquez in Rewire News published March 5, 2019
Pacific Standard / Medical expert Interviewed as medical expert about the rise in numbers of infants held in immigrant detention. Article entitled "The Number of Babies in ICE Detention at the Border Has Shot Upward Since January" by Jack Herrera in Pacific Standard published on March 5, 2019
American Immigration Council / Medical expert (Physicians for Human Rights) Co-authored expert affidavit on behalf of Physicians for Human Rights utilized by the American Immigration Council, the American Immigration Lawyers Association, and the Catholic Legal Immigration Network, Inc. as part of an official public complaint sent to the U.S. Department of Homeland Security about the rise of infants held in immigrant detention centers.
CBS News / Medical expert Interviewed for CBS News piece about the rise in number of infants held in immigrant detention centers. News segment lead by CBS News Digital Reporter Kate Smith aired on February 28, 2019.
Think Progress / Medical expert Interviewed as medical expert about the rise in numbers of infants held in immigrant detention. Article entitled "Immigration groups file complaint over ‘alarming increase’ in detained infants at Texas center" by Rebekah Entralgo in Think Progress published February 28, 2019
BBC / Medical expert Interviewed by the BBC for an episode of The Real Story entitled "What's going on at the US-Mexico Border?" that aired on March 15, 2019.
Harvard Law School / Discussant Spoke as part of a multi-disciplinary panel for a session entitled "Children and Migration Speaker Series: Migrant Children and Family Separation at the Border" at Harvard Law School
Associated Press / Medical Expert Interviewed as medical expert about the recent death of a Guatemalan boy in government custody. Article entitled "US won’t answer new questions about migrant teen’s death" by Nomaan Merchant and Sonia Perez of the Associated Press and picked up by multiple major news outlets, published on May 9, 2019

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2019 2020

Pacific Standard / Medical expert Interviewed as medical expert about the recent increase in deaths of immigrant children currently in government custody. Article entitled "One Reason Migrant Children are Dying in Government Custody: Authorities Can't Tell When They're Sick" by Jack Herrera in Pacific Standard published on May 16, 2019
Vice News / Medical expert Interviewed as medical expert about U.S. government's family separation policy as torture. Article entitled "Doctors Have a Name for Separating Kids from Their Parents at the Border: It's Torture." by Emma Ockerman in Vice News published on February 25, 2020.

Report of Scholarship

Peer-Reviewed Scholarship in print or other media

Other peer-reviewed scholarship

1. Sud S, Ratzan KR, Khan A, Gavin N, Reeves N, Kurapati S, Chida N. Incorporating Human Rights Training into Medical Education: Reaffirming the Physician’s Role as Patient Advocate. Harvard Health Policy Review (Cambridge, MA). 2009 Apr; 10(1): 12-13. Available from: http://hhpronline.org/publication/previous-issues/spring-2009-part-1/.

2. Peeler KR, Hasvold J, Wolff M. Chest pain and anxiety in an adolescent: an unusual etiology. Pediatric emergency care. 2014 Nov 1; 30(11): 812-3. PubMed PMID: 25373566.

3. Peeler KR. Critical Appraisal of: Chatterjee S, Chakraborty A, Weinberg I, Kadakia M, Wilensky RL, Sardar P, Kumbhani DJ, Mukherjee D, Jaff MR, Giri J. Thrombolysis for pulmonary embolism and risk of all-cause mortality, major bleeding, and intracranial hemorrhage: a meta-analysis. JAMA 2014 Jun 18;311(23):2414-21. The PedsCCM Evidence-Based Journal Club. 2015 Feb. Available from: http://pedsccm.org/view-review.php?id=971.

4. Gold NB, Blumenthal JA, Wessel AE, Stein DR, Scott A, Fox V, Turner A, Kritzer A, Rajabi F, Peeler KR, Tan W. Acute Pancreatitis in a Patient with Maple Syrup Urine Disease: A Management Paradox. The Journal of pediatrics. 2018 Jul 1; 198: 313-316. PubMed PMID: 29681447.

5. Peeler KR. Emergency Care of Pediatric Asylum Seekers in the US. Clinical Pediatric Emergency Medicine. 2019 Jun; 20(2): 89-94.

6. Peeler KR, Hampton K, Lucero J, Iijadi-Maghsoodi R. Sleep deprivation of detained children: another reason to end child detention. Health and Human Rights Journal (Boston, MA). 2020 Jan 20. Available from: https://www.hhrjournal.org/2020/01/sleep-deprivation-of-detained-childrenanother-reason-to-end-child-detention/.

7. Gartland MG, Ijadi-Maghsoodi R, Giri M, Messmer S, Peeler KR, Barkoudah A, Shah S. Forensic medical evaluation of children seeking asylum: a guide for pediatricians. Pediatric Annals (Thorofare, NJ). Forthcoming.

8. Brucker WJ, Croteau S, Prensner J, Cullion K, Heeney M, Lo J, McAlvin J, Peeler KR, Shah N, Yee CSK, Berry G, Bodamer O. An emerging role for endothelial barrier support therapy for congenital

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disorders of glycosylation. Journal of inherited metabolic disease. 2020 Feb 16. PubMed PMID: 32064623.
Scholarship without named authorship
1. Rothman EF, Stoklosa H, Baldwin SB, Chisolm-Straker M, Kato Price R, Atkinson HG. Public Health Research Priorities to Address US Human Trafficking.*. American Journal of Public Health. 2017 Jul 1; 107(7): 1045-1047. PubMed PMID: 28590857. (*This publication was created collaboratively by the HEAL (Health, Education, Advocacy, Linkage) Trafficking Research Committee of which I am a member. I am contributed to the original concept and writing. As only six authors were allowed, however, I was listed as a research design contributor and writer in the acknowledgements.)
Non-peer reviewed Scholarship in print or other media
Reviews, chapters, monographs and editorials
1. Peeler KR. Protecting the Tired, the Poor, the Huddled Masses. The New England Journal of Medicine. 2017 Feb 22. PubMed PMID: 28225667.
2. Peeler KR, Ardalan S, Boyd J. The Universal Declaration Of Human Rights At 70: How Far Have We Come? Cognoscenti/WBUR (Boston, MA). 2018 Dec 20. Available from: https://www.wbur.org/cognoscenti/2018/12/20/human-rights-us-immigration-sabi-ardalan-j-wesleyboyd-katherine-peeler.
3. **Kim I, Peeler KR, Ardalan S. Care and comfort [editorial]. Harvard Medicine (Boston, MA). 2020 Jan(Winter 2020): 5-6.
4. Peeler KR. Forced Family Separation Isn't Just Traumatic. It's Torture. [editorial]. Cognoscenti/WBUR (Boston, MA). 2020 Feb 28. Available from: https://www.wbur.org/cognoscenti/2020/02/28/p-h-r-family-separation-katie-peeler.
5. Thousands Of Immigrant Kids Are Detained, Far From Their Parents. They Need Protection From COVID-19, Too [editorial]. Cognoscenti/WBUR (Boston, MA). 2020 Mar 20. Available from: https://www.wbur.org/cognoscenti/2020/03/20/migrant-kids-coronavirus-covid-19-katherine-peeler.
**Mentee
Books/textbooks for the medical or scientific community
1. Peeler KR, Agus M. The Endocrine Response to Critical Illness. In: Sally Radovick and Madhusmita Misra, editor(s). Pediatric Endocrinology: A Practical Clinical Guide. 3rd Edition. 2018.
2. Peeler KR, Agus M. Endocrine Pathology in Pediatric Critical Care. In: Bradley P. Fuhrman, Jerry J. Zimmerman, editor(s). Pediatric Critical Care, 6th ed. Elsevier. Forthcoming.
3. Peeler KR, Boyd J. Mental Health Priorities of Detained immigrant children in the United States. In: Giuseppe Raviola, Vikram Patel,, Daniel Vigo, editor(s). Case Studies in Global Mental Health Delivery. MIT. Forthcoming.

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Professional Educational Materials or Reports in print or other media
1. Web Teaching Material/Internet Database. Gifford K, Ratzan K. Helping Families to Cope [Internet]. eCLIPPs (extended Computer-assisted Learning in Pediatrics Program scenario). 2009. Available from: www.eclipps.org (login required). Intended audience: Medical/Dental Students. The scenarios written and produced for extended Computer-assisted Learning in Pediatrics Program (eCLIPPs) are used by pediatric clerkships around the United States to teach core concepts about pediatrics.
2. Web Teaching Material/Internet Database. Truog R, Zaccagnini L, Hickey C, Peeler K, Albert B, Delsignore L, Burns J. Talking with Patients and Families After Medical Errors: Discussion of Cases. [Internet]. OPENPediatrics. Boston, MA 2016. Available from: https://www.openpediatrics.org/assets/video/talking-patients-and-families-after-medical-errorsdiscussion-cases. Intended audience: All healthcare professionals interested in pediatric medicine. OPENPediatrics is a free web-based educational platform with videos by experts in the field who teach about various topics related to pediatric critical care. This is for physicians, nurses, and all allied health professionals around the world.
Abstracts, Poster Presentations and Exhibits Presented at Professional Meetings
1. Batool S, Ashrafzadeh S, Bartuska A, Peeler KR: Evaluation of an Asylum Forensic Examination Training at Harvard Medical School. Presented at Foreign Bodies: Fear of the (Un)known - Physicians for Human Rights Annual National Student Conference, Boston, November, 2019.

Case 5:20-cv-10829-JEL-APP ECF No. 82-8 filed 05/18/20 PageID.2489 Page 1 of 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

DECLARATION OF DR. HOMER VENTERS IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR
A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 82-8 filed 05/18/20 PageID.2490 Page 2 of 8
I, Homer Venters hereby declare as follows:
1. I am submitting this declaration to supplement my two prior declarations in the action, Malam v. Adduci, No. 5:20-cv-10829-JEL-APP (E.D. Mich.).
2. As explained in my prior declarations, I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before U.S. Congress regarding mortality inside ICE detention facilities. I have also worked in various leadership positions at the NYC Jail Correctional Health Service, and then at Physicians for Human Rights (PHR) and Community Oriented Correctional Health Services (COCHS). I currently serve as a medical expert in cases involving correctional health and I have a book on the health risks of jail (Life and Death in Rikers Island) that was published in early 2019 by Johns Hopkins University Press.
3. I submit this declaration to discuss asthma and hypertension, both conditions that require chronic care, and explain how they present high risk factors for serious illness or death from COVID-19.
4. The Centers for Disease Control and Prevention (CDC) has reported that people with chronic health problems are at increased risk of serious illness and death from COVID-19 infection. As the COVID-19 pandemic has progressed, the CDC has added to their list of symptoms that are associated with COVID-19 infection and they have also reported and updated data regarding which chronic health problems are most associates with hospitalization during COVID-19 infection.1
5. The CDC has additionally identified that poorly controlled chronic health problems create additional risk for serious illness or death from COVID-19 in excess of the increased risk that simply having a chronic health problem confers. But having a chronic health problem such as diabetes or heart disease that is under control still represents a high-risk status per CDC guidelines. Consequently, any determinations that people with chronic health conditions are excluded from consideration as being high risk, simply because their conditions are not out of control or poorly controlled is inconsistent with CDC guidelines, represents a gross deviation
1 Groups at Higher Risk for Severe Illness, Coronavirus Disease 2019 (COVID-19), CENTERS FOR DISEASE CONTROL & PREVENTION (reviewed May 14, 2020); https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last accessed May 18, 2020).

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from clinical standards of care, and increases the likelihood that vulnerable patients will become seriously ill and die from COVID-19.
Asthma
6. The CDC identifies that people with moderate to severe asthma are at increased risk of serious illness and death from COVID-19.2 There are two essential elements to assessing a patient with asthma. One involves determining the level of severity (e.g. mild intermittent, mild persistent, moderate or severe) and the other involves how well controlled the patient’s asthma is (e.g. well controlled, not well controlled or poorly controlled).3 The CDC has specifically identified that patients in the severity classifications of moderate and severe should be considered as high risk.
7. In order to determine that an asthmatic patient is not at increased risk of serious illness and death from COVID-19 (i.e., the patient only has mild intermittent or mild persistent asthma), correctional health services need to document the following: a. Frequency of symptoms occur less than daily; b. Nighttime awakenings less than weekly; c. Use of rescue inhaler occurs less than daily4; d. The patient has a FEV1 more than 60% expected with normal FVC ratio5; e. Use of oral corticosteroids has occurred less than twice in past year.
8. Patients with asthma who do not have all of these basic elements of their assessment completed should be considered high risk until a full risk assessment can be performed. This is especially true for patients whose medical records indicate that their asthma is not very well controlled, as exhibited by: a. Symptoms more than twice per week; and/or, b. Use of rescue inhaler more than twice per week.
9. A basic element of asthma care outlined by the CDC is the creation and use of an asthma action plan.6 This plan is created with the provider and patient together and educates the patient on how they can assess their asthma as ‘Doing well,’ ‘Asthma getting worse,’ and ‘Medical alert’. Every asthmatic patient should have their action plan updated and documented in their medical record with specific counseling relating to COVID-19.
2 People with Moderate to Severe Asthma, CENTERS FOR DISEASE CONTROL & PREVENTION (reviewed Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html (last accessed May 18, 2020). 3 Susan M. Pollart, et al., Overview of Changes to Asthma Guidelines: Diagnosis and Screening, AM. FAMILY PHYSICIAN (May 2009), https://www.aafp.org/afp/2009/0501/p761.html (last accessed May 18, 2020). 4 Excluding exercise-induced bronchospasm, i.e., induced by strenuous physical activity beyond normal, everyday activities. 5 FEV1 = forced expiratory volume in one second; FVC = forced vital capacity. Normal FEV1/FVC by age is 85 percent for eight to 19 years; 80 percent for 20 to 39 years; 75 percent for 40 to 59 years; and 70 percent for 60 to 80 years. 6 Asthma Action Plans, CENTERS FOR DISEASE CONTROL & PREVENTION (reviewed Apr. 13, 2020), https://www.cdc.gov/asthma/actionplan.html (last accessed May 18, 2020).

Case 5:20-cv-10829-JEL-APP ECF No. 82-8 filed 05/18/20 PageID.2492 Page 4 of 8
10. All patients in detention settings who have asthma classified as moderate to severe, should be considered as high risk of serious illness or death from COVID-19 and require additional surveillance and protection.
11. Patients in detention settings with asthma who lack an asthma action plan, peak flow readings or severity classification within the past six months should be considered as being high risk for serious illness or death from COVID-19 until and unless these basic elements of asthma assessment and care are established.
12. Because of the overlap between asthma and COVID-19 symptoms, all sick call requests should be reviewed on a daily basis and any reported symptoms that are either asthma or COVID-19 related should result in a) prompt clinical evaluation within 24 hours and b) potential integration of the symptoms into a tracking database for COVID-19 related symptoms.
Hypertension
13. There are several critical reasons that the disease of hypertension should result in people detained by ICE being considered as high risk for serious illness or death from COVID-19 infection. The CDC’s guidance for groups at higher risk for severe illness specifically addresses individuals with hypertension and advises them to continue to manage and control their high blood pressure.7
14. CDC data reveal that hypertension is the most common diagnosis among people who become so ill with COVID-19 that they require hospitalization.8 As explained in my prior declaration, data on hospitalized cases reflect patients with severe manifestations of COVID-19 that warranted inpatient management and supportive care. Once a patient is hospitalized, that individual is already at a critical stage of illness and could lead to rapid decline without support.
15. The following chart comes from the CDC, which analyzed data as of May 9, 2020 of 3,734 hospitalized adults and found that the most commonly reported underlying medical condition was hypertension.9 This builds off a previous report, dated April 17, 2020, that also identified hypertension as the most common underlying condition in a study of 1,483 hospitalized patients admitted in March.10
7 Groups at Higher Risk for Severe Illness, Coronavirus Disease 2019 (COVID-19), CENTERS FOR DISEASE CONTROL & PREVENTION (reviewed May 14, 2020); https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last accessed May 18, 2020). 8 COVIDView: A Weekly Surveillance Summary of U.S. COVID-19 Activity, CENTERS FOR DISEASE CONTROL & PREVENTION (updated May 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/index.html (last accessed May 18, 2020). 9 Id. 10 Shika Garg, et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 – COVID-NET, 14 States, March 1–30, 2020. MMWR Morb Mortal Wkly Rep., CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm?s_cid=mm6915e3_w (last accessed May 18, 2020).

Case 5:20-cv-10829-JEL-APP ECF No. 82-8 filed 05/18/20 PageID.2493 Page 5 of 8
16. Moreover, recent studies based on data from both China and the United States reveal that hypertension is the most common co-morbidity among people who die from COVID-19.11
11 Bolin Wang, et al., Does Comorbidity Increase the Risk of Patients With COVID-19: Evidence from MetaAnalysis, AGING (Albany NY) 12, no. 7 (2020): 6049. https://www.aging-us.com/article/103000/text (last accessed May 18, 2020); Jianfeng Xie, et al., Clinical Characteristics of Patients Who Died of Coronavirus Disease 2019 in China, JAMA NETW OPEN. 2020;3(4):e205619. doi:10.1001/jamanetworkopen.2020.5619 (last accessed May 18, 2020); Jennifer Lighter, et al., Obesity in Patients Younger Than 60 Years Is a Risk Factor for Covid-19 Hospital Admission, CLIN INFECT DIS 9 (2020); Richard Franki, Comorbidities the Rule in New York’s COVID-19, THE HOSPITALIST (Apr. 8, 2020), https://www.the-hospitalist.org/hospitalist/article/220457/coronavirusupdates/comorbidities-rule-new-yorks-covid-19-deaths (last accessed May 16, 2020); Safiya Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area, J. OF THE AM. MEDICAL ASS’N (Apr. 22, 2020), https://jamanetwork.com/journals/jama/articlepdf/2765184/jama_richardson_2020_oi_200043.pdf (last accessed May 18, 2020); see also Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus

Case 5:20-cv-10829-JEL-APP ECF No. 82-8 filed 05/18/20 PageID.2494 Page 6 of 8
17. For instance, a recent meta-analysis that includes data from six different studies among hospitalized COVID-19 patients found that having hypertension was associated with significantly worse clinical outcomes and more severe illness.12 This analysis incorporated data from 1550 hospitalized patients and reported that patients with hypertension were more than twice as likely to experience serious illness than those without hypertension. This link between hypertension and serious illness from COVID-19 is even more concerning with recent information that COVID-19 patients are experiencing high rates of blood clots and strokes.13
18. In addition to the link between documented hypertension and severity of COVID-19 outcomes, ICE patients with hypertension also face another barrier to appropriate care that increases their risk of serious illness or death from COVID-19: racial disparities in the treatment of their
Disease (COVID-19), CENTERS FOR DISEASE CONTROL & PREVENTION (updated May 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last accessed May 18, 2020). 12 Bolin Wang, et al., Does Comorbidity Increase the Risk of Patients With COVID-19: Evidence from MetaAnalysis, AGING (Albany NY) 12, no. 7 (2020): 6049. https://www.aging-us.com/article/103000/text (last accessed May 18, 2020). 13 Ariana Eunjung Cha, A Mysterious Blood-clotting Complication Is Killing Coronavirus Patients, THE WASHINGTON POST (Apr. 22, 2020), https://www.washingtonpost.com/health/2020/04/22/coronavirus-blood-clots/ (last accessed May 18, 2020).

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hypertension. Since the Congressionally mandated report by the Institute of Medicine in 2002, Unequal Treatment, health systems in the United States have operated with full knowledge that they often provide lower quality and access to care for racial and ethnic minority patients.14 The CDC has clearly identified that people with poorly controlled chronic health problems such as untreated hypertension, face additional, discrete risk of serious illness or death from COVID-19 specifically because of the lack of disease control.15
19. Despite the longstanding directive that health systems identify and address disparities in diagnosis and treatment of hypertension and other chronic health problems, ICE has never conducted and reported a single analysis of racial or ethnic disparities in its health services.16
20. The CDC has identified that immigrants may less likely to be aware of chronic health problems like hypertension.17 The American College of Cardiology has identified that significant racial and ethnic disparities in hypertension control exist in the United States.18 Disparities in hypertension care can include differences in the diagnosis and treatment of high blood pressure, as well as monitoring for long term effects of hypertension and complications that involve eye and kidney function and other secondary effects.19 These disparities result in higher levels of poorly controlled disease, and thus, are directly linked to the CDC’s guideline that people with poorly controlled health problems face additional risks for serious illness and death from COVID-19. In fact, the CDC has already reported dramatic racial disparities in
14 Unequal Treatment: What Healthcare Providers Need to Know About Racial and Ethnic Disparities in Healthcare, INSTITUTE OF MEDICINE (Mar. 2002), https://www.nap.edu/resource/10260/disparities_providers.pdf (last accessed May 18, 2020). 15 U.S. DEP’T OF HEALTH & HUMAN SERVS., CENTERS FOR DISEASE CONTROL & PREVENTION, Order Under Sections 362 & 365 of the Public Health Service Act (Mar. 20, 2020), https://www.cdc.gov/quarantine/pdf/CDC-OrderProhibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf (last accessed May 18, 2020) (noting that adults subject to the order have “chronic health problems such as diabetes and high blood pressure (which are comorbidities known to increase the health risks associated with COVID-19 infections and, thus, the likelihood of requiring medical intervention after infection).”); Groups at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html (last accessed May 16, 2020). 16 Building an Organizational Response to Health Disparities, CENTERS FOR MEDICARE & MEDICAID SERVS., https://www.cms.gov/About-CMS/Agency-Information/OMH/Downloads/Health-Disparities-Guide.pdf (last accessed May 18, 2020). 17 Helen V.S. Cole, et al., Awareness of High Blood Pressure by Nativity Among Black Men: Implications for Interpreting the Immigrant Health Paradox, CENTERS FOR DISEASE CONTROL & PREVENTION (Oct. 4, 2018), Prev Chronic Dis 2018;15:170570. DOI: http://dx.doi.org/10.5888/pcd15.170570 (last accessed May 3, 2020); see also Silvia Helena Barcellos, et al., Undiagnosed Disease, Especially Diabetes, Casts Doubt On Some Of Reported Health ‘Advantage’ Of Recent Mexican Immigrants, HEALTH AFFAIRS (Dec. 2012), https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2011.0973 (last accessed May 3, 2020). 18 Anum Saeed, et al., Racial Disparities in Hypertension Prevalence and Management: A Crisis Control?, AM. COLLEGE OF CARDIOLOGY (Apr. 6, 2020), https://www.acc.org/latest-in-cardiology/articles/2020/04/06/08/53/racialdisparities-in-hypertension-prevalence-and-management (last accessed May 18, 2020). 19 Al Kibria GM, Racial/ethnic disparities in prevalence, treatment, and control of hypertension among US adults following application of the 2017 American College of Cardiology/American Heart Association guideline. PREV MED REP. 2019 Mar 16;14:100850. doi: 10.1016/j.pmedr.2019.100850. eCollection 2019 Jun., accessible at https://www.ncbi.nlm.nih.gov/pubmed/31061780 (last accessed May 18, 2020).

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hospitalization rate for COVID-19.20 The CDC recently cited data from New York City identifying death rates among Black/African American persons (92.3 deaths per 100,000 population) and Hispanic/Latino persons (74.3) as “substantially higher” than that of white or Asian persons.21
21. Against the historical and systemic backdrop of racial disparities for treatment of conditions like hypertension, the recent data from the CDC and other studies regarding hypertension’s prevalence among hospitalized cases and deaths confirm that hypertension should be considered a high risk factor for patients in detention.
Conclusion
22. For the reasons elaborated above, individuals in ICE detention with either moderate to severe asthma or hypertension should be considered at high risk to serious illness or death from COVID-19.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 18th day in May 2020 in Port Washington, New York Signed,
Homer Venters MD, MS
20 See Characteristics and Clinical Outcomes of Adult Patients Hospitalized with COVID-19 — Georgia, March 2020, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 29, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e1.htm?s_cid=mm6918e1_e&deliveryName=USCDC_921DM26922 (last accessed May 18, 2020); see also Allison Aubrey, CDC Hospital Data Point To Racial Disparity In COVID-19 Cases, NAT’L PUB. RADIO (Apr. 8, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/04/08/830030932/cdc-hospital-data-point-to-racial-disparity-in-covid-19-cases (last accessed May 18, 2020). 21 See COVID-19 in Racial and Ethnic Minority Groups, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html (last accessed May 18, 2020)

 
 Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2638 Page 1 of 19

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2639 Page 2 of 19

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2640 Page 3 of 19 Helling v. McKinney

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Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2642 Page 5 of 19

Demore v. Kim

Jennings v. Rodriguez Zadvydas v. Davis

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2643 Page 6 of 19

id.,

Garcia v. Shanahan,

Louisaire v. Muller

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Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2645 Page 8 of 19

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Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention available at

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DeShaney v. Winnebago County Dept. of Soc. Servs. Id

DeShaney

Helling v. McKinney Id.

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2650 Page 13 of 19 Id.
Zadvydas v. Davis
Bell v. Wolfish Jones v. Blanas,
King v. Cnty. of Los Angeles
Jones,

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2651 Page 14 of 19
Unknown Parties v. Johnson Doe v. Kelly

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2652 Page 15 of 19
Stone v. City & Cnty. of San Francisco Brown v. Plata
Duran v. Elrod

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2653 Page 16 of 19

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2654 Page 17 of 19

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2655 Page 18 of 19 /s/ Andrew D. Stacer /s/ Rosana M. Garbacik

Case 5:20-cv-10829-JEL-APP ECF No. 87 filed 05/19/20 PageID.2656 Page 19 of 19
/s/ Andrew D. Stacer /s/ Rosana M. Garbacik

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 Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2703 Page 1 of 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,

Petitioner-Plaintiff,

Case No. 20-10829

and

Judith E. Levy

Qaid Alhalmi, et al.,

United States District Judge

Plaintiff-Intervenors, Mag. Judge Anthony P. Patti

v.

Rebecca Adducci, et al.,

Respondent-Defendants.

________________________________/

SECOND OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AS A PRELIMINARY INJUNCTION [44]

On April 26, 2020, six named Plaintiffs filed an emergency motion

for a temporary restraining order. (ECF No. 44.) Four of these six

Plaintiffs—Qaid Alhalmi, Tomas Cardona Ramirez, Damary Rodriguez

Salabarria, and Emanuel Rosales Borboa—claimed that because of their

age and/or underlying medical conditions, their continued civil detention

violated their Fifth Amendment rights by exposing them to a substantial

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risk of serious illness and/or death from COVID-19. Accordingly, these Plaintiffs sought a temporary restraining order requiring their immediate release from confinement. (Id. at PageID.1043.) On May 12, 2020, the Court granted relief for Plaintiffs Alhalmi and Cardona Ramirez, finding that both Plaintiffs had underlying medical conditions placing them at heightened risk of severe negative outcomes from a COVID-19 infection. (ECF No. 68, PageID.1920.) The Court ordered supplemental briefing on whether Plaintiff Rodriguez Salabarria’s hypertension and Plaintiff Rosales Borboa’s asthma placed them at increased risk of severe illness and/or death from a COVID-19 infection. (Id. at PageID.1925, 1927.) Both parties filed supplemental briefing on May 18, 2020. (ECF Nos. 80, 82.) The Court now grants Plaintiffs’ motion with respect to Rodriguez Salabarria and Rosales Borboa. FACTUAL BACKGROUND
I. Damary Rodriguez Salabarria Plaintiff Damary Rodriguez Salabarria is a forty-six-year-old citizen of Cuba. (ECF No. 52, PageID.1516.) She was detained in Texas by U.S. Border Patrol on August 1, 2019. (ECF No. 52-4, PageID.1563.) On August 10, 2019, Plaintiff Rodriguez Salabarria was transferred due
2

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to a housing shortage in Texas to the Calhoun County Correctional Facility. (Id.) She suffers from hypertension, chronic gastritis, a peptic ulcer, and gastroesophageal reflux, for which she takes a daily medication for each. (ECF No. 44, PageID.1023.) Her medical records show a recent diagnosis of chronic localized mucocutaneous candidiasis, which the Court understands to be a yeast infection. (ECF No. 57, PageID.1675.) Additionally, Plaintiff Rodriguez Salabarria has a history of hospitalizations for acute pancreatitis, an appendectomy, cholecystectomy, and kidney infections. (Id.)
II. Emanuel Rosales Borboa Plaintiff Emanuel Rosales Borboa is a thirty-five-year-old citizen of Mexico. (ECF No. 52, PageID.1516.) On June 24, 2014, Rosales Borboa applied for—and on December 16, 2014, U.S. Citizenship and Immigraiton Services denied him—Deferred Action for Childhood Arrivals status. (ECF No. 52-5, PageID.1568.) Although he was initially released on bond on May 15, 2017 after United States Border Patrol initiated removal proceedings on April 27, 2017 (id. at PageID.1568– 1569), Rosales Borboa was subsequently arrested by the Detroit Police Department and has been in ICE custody at the Calhoun County
3

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Correctional Facility since March 10, 2020. (Id. at PageID.1569.) Rosales Borboa suffers from asthma, for which he was hospitalized for two days approximately ten years ago. (ECF No. 44, PageID.1023.) At various times, the frequency of which the parties contest, Rosales Borboa has required the use of an inhaler and steroids to control his asthma. (Id. at PageID.1024; ECF No. 64, PageID.1812.) LAW AND ANALYSIS
I. Legal Standard Plaintiffs seek a temporary restraining order. (ECF No. 54.) Nonetheless, Plaintiffs gave notice to Defendants and did not seek a ruling before Defendants could respond. A temporary restraining order (TRO), which can be issued without notice to the adverse party, is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). Here, because the Defendants are on notice and the Court allowed time for extensive briefing and heard oral argument on Plaintiffs’ motion, the Court will treat the motion as one for a preliminary injunction rather than for a temporary restraining
4

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order. See Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *3 (E.D. Mich. May 9, 2020) (doing the same).
“Preliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
II. Application
5

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Judges, by and large, are neither mathematicians nor medical experts, and the undersigned is neither. Still, adjudicating questions of constitutional law in relation to the ongoing COVID-19 pandemic requires mapping precise calculations of medical risk onto the more nebulous legal standards of high likelihood of irreparable injury and substantial risk of serious harm. To do so, the Court must rely on evidence submitted by the parties—declarations from medical experts, scientific publications, and guidance from public health agencies. For judicial determinations to have integrity and consistency, justice must be guided by science.
To date, the Court’s opinions regarding the Fifth Amendment rights of noncitizens in immigration detention have largely tracked CDC guidance. The CDC has published—and regularly reviews—a list of factors and underlying health conditions that place a person at heightened risk of severe illness and/or death from COVID-19. People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html (last reviewed May 14, 2020). As the Supreme Court and Sixth Circuit have recognized, CDC public health
6

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and medical determinations are to be given significant weight. See Bragdon v. Abbott, 524 U.S. 624, 650 (1998) ([T]he views of public health authorities, such as the . . . CDC . . . are of special weight and authority.”); Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 404 (6th Cir. 1998) (deferring to the “medical judgment expressed in the Report of the Centers for Disease Control in evaluating the district court’s ruling on whether Mauro posed a direct threat in the essential functions of his job.”).
Plaintiffs’ complaint grants similar deference to CDC guidance. Plaintiffs seek certification of a subclass of medically vulnerable individuals, defined as “[a]ll noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.” (ECF No. 43, PageID.995.) Plaintiffs’ enumerated list of risk factors parallels the CDC’s and ends with the catchall category of “any other condition identified by the CDC as putting a person at a higher risk.” (Id.)
But while the Court treats the presence of a CDC risk factor as dispositive of a person’s increased risk, the inverse is not true where
7

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public health or other evidence on the record can show a Plaintiff is nonetheless at substantial risk. Although the CDC lists people over sixtyfive as being at heightened risk of severe illness and/or death, the Court found that a fifty-five-year-old Plaintiff’s age, combined with other factors, placed him at a substantial risk of severe illness and/or death from COVID-19. (ECF No. 41, PageID.905.) The Court relied on the declarations of two medical professionals concluding that people over fifty are at serious risk. (Id. at PageID.904.) Additionally, the Court noted that both CDC and WHO recognize that risk increases with age (Id. at PageID.904–905): CDC guidance acknowledges that “the older you are, the higher your risk of serious disease.” Groups at Higher Risk of Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last reviewed May 14, 2020); WHO guidance concludes that “[t]he risk of severe disease gradually increases with age starting from around 40 years. It’s important that adults in this age range protect themselves and in turn protect others that may be more vulnerable.” Coronavirus Disease 2019 (COVID-19) Situation Report – 51, World Health Organization (Mar. 11, 2020),
8

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2711 Page 9 of 26
https://www.who.int/docs/defaultsource/coronaviruse/situationreports/2 0200311-sitrep-51-covid-19.pdf?sfvrsn=1ba62e57_10.
While COVID-19 poses a threat to any person it infects, injunctive relief in the form of release demands a showing of irreparable injury and substantial risk of serious harm. In concert, the Court’s earlier opinions reflect the holding that the presence of a risk factor for severe illness and/or death translates a high risk of infection into a high risk of irreparable injury and a substantial risk of serious harm such that no conditions of confinement at the Calhoun County Correctional Facility can ensure a civil detainee’s reasonable safety. When the Court adjudicates claims brought by Plaintiffs without risk factors, the Court’s inquiry will focus on what set of conditions are necessary to ensure their reasonable safety in confinement.
Because the CDC identifies diabetes as a risk factor increasing the likelihood of serious illness and/or death from COVID-19, the Court concluded that 1) Alhalmi and Cardona Ramirez, both of whom have diabetes, faced a high likelihood of irreparable injury from continued detention (ECF No. 68, PageID.1913–1920); 2) they had shown a likelihood of success on the merits of both the subjective and objective
9

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components of a deliberate indifference claim (Id. at PageID.1929–1951); and 3) the public interest favored their release. (Id. at PageID.1951– 1952.)
The Court now finds that Rodriguez Salabarria’s hypertension and obesity and Rosales Borboa’s asthma similarly increase their risk of severe illness and/or death from COVID-19, justifying injunctive relief.
A. Rodriguez Salabarria In its May 12, 2020 Opinion, the Court found the evidence mixed as to whether hypertension is a risk factor. The Court noted that the CDC includes only pulmonary hypertension in its enumerated list of risk factors, see Groups at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed May 14, 2020), but that in a morbidity and mortality weekly report, the CDC stated that people with hypertension “might be at higher risk for severe disease or death from COVID-19.” See Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, Centers for Disease Control and Prevention (Apr. 3, 2020),
10

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https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm.

Given

evidence that hypertension is the single most prevalent comorbidity for

patients hospitalized with COVID-19, see Hospitalization Rates and

Characteristics of Patients Hospitalized with Laboratory-Confirmed

Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020,

Centers for Disease Control and Prevention (Apr. 17, 2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm, the Court

ordered supplemental briefing to better evaluate the public health and

medical evidence. (ECF No. 68, PageID.1925.)

Plaintiffs rely largely on the declarations of Dr. Homer Venters, on

whose declarations the Court has relied in earlier opinions, and Dr.

Whitney Lieb, Assistant Professor of Obstetrics and Gynecology at the

Icahn School of Medicine at Mount Sinai Hospital, for the proposition

that hypertension places Plaintiff Rodriguez Salabarria at heightened

risk of severe illness and/or death from COVID-19. (ECF Nos. 82-8, 84.)

Drs. Venters and Lieb place significant weight on the extensive data

showing hypertension as the most frequent comorbidity for patients who

are hospitalized or die from COVID-19. (ECF No. 82-8, PageID.2492–

2494; ECF No. 84, PageID.2506.)

11

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2714 Page 12 of 26
Defendants rebut this argument on the grounds that data showing a correlation between hypertension and adverse outcomes from COVID19 does not prove a causal relationship. An article appearing in the May 2020 edition of the American Journal of Hypertension (but originally submitted March 30, 2020) concludes that “there is as yet no evidence that hypertension is related to outcomes of COVID-19, or that ACE inhibitor or ARB use is harmful, or for that matter beneficial, during the COVID-19 pandemic.” (ECF No. 80-1, PageID.2382.) Defendants include the declaration of Dr. Kenneth Scissors, an internal medicine and emergency room physician. (ECF No. 80-2.) Dr. Scissors explains that “Hypertension must not be conflated with ‘serious heart condition[,]’ as they are somewhat related but distinct diagnoses.” (ECF No. 80-2, PageID.2386.) Regarding studies showing hypertension as the most common comorbidity for patients who were hospitalized or died from COVID-19, Dr. Scissors writes,
The authors of these studies explicitly explained that their studies are methodologically limited to only report baseline characteristics within the population they studied, and as such were inadequate to conclude that these baseline characteristics conferred specific risk for individual patients throughout the world. Although it is tempting to jump from a correlating baseline characteristic to a cause and effect
12

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2715 Page 13 of 26

relationship, to do so is speculative, not evidence-based, and commonly proves to be unfounded when subsequent studies designed to determine cause and effect are performed.

(ECF No. 80-2, PageID.2387.) Defendants’ argument boils down to a

logical truism: correlation is not causation.

Developments in both CDC guidance and scientific publications

nonetheless demonstrate that Rodriguez Salabarria is at substantial risk

of severe illness and/or death from COVID-19. On April 16, 2020, the

CDC amended its guidance on serious heart conditions, advising that

“[p]eople with hypertension should continue to manage and control their

blood pressure and take their medication as directed.” Wayback Archive,

Internet Archive (last accessed May 21, 2020),

https://web.archive.org/web/20200416200039/https://www.cdc.gov/coron

avirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html

(archiving April 16, 2020 snapshot of Information for People Who Are at

Higher Risk for Severe Illness, Centers for Disease Control and

Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/groups-at-higher-risk.html (last reviewed Apr. 15, 2020)).

Dr. Venters emphasizes that “[t]he CDC’s guidance for groups at higher

risk for severe illness specifically addresses individuals with

13

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2716 Page 14 of 26

hypertension.” (ECF No. 82-8, PageID.2492.) At least one district court

has found that these explicit references to high blood pressure and

hypertension under CDC guidance for “[s]erious heart conditions”

supports the finding that hypertension is a risk factor. See Barbecho v.

Decker, No. 20-CV-2821, 2020 WL 2513468, at *3 (S.D.N.Y. May 15,

2020). Additionally, an April 23, 2020 CDC publication—issued after the

American Journal of Hypertension article on which Defendants rely—

both cites hypertension as a risk factor and notes that individuals with

hypertension were six times more likely to die from COVID-19 than

patients without any chronic health conditions. Mary Adams et al.,

Population-Based Estimates of Chronic Conditions Affecting Risk for

Complications from Coronavirus Disease, United States, Emerging

Infectious

Diseases

(Apr.

23,

2020),

https://wwwnc.cdc.gov/eid/article/26/8/20-0679_article.

The record can be summarized as follows: one doctor, reviewing the

scientific literature, argues that it cannot be assumed based on a

correlative relationship that hypertension causes adverse outcomes in

COVID-19 patients. Two doctors, reviewing both the scientific literature

and Rodriguez Salabarria’s medical history, conclude that despite the

14

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2717 Page 15 of 26
scientific uncertainty regarding a causal relationship, hypertension is a CDC-recognized risk factor and Rodriguez Salabarria is at heightened risk of severe illness and/or death from COVID-19. A recent CDC publication agrees. The Court finds that the weight of the evidence demonstrates that Plaintiff Rodriguez Salabarria’s hypertension together with her other underlying medical conditions places her at substantially heightened risk of adverse outcome from COVID-19.
Plaintiffs also point to Rodriguez Salabarria’s obesity as a risk factor. Rodriguez Salabarria has a Body-Mass Index (BMI) of thirty-one. (ECF No. 84, PageID.2506.) Although the CDC identifies a BMI greater than forty as a risk-factor for severe adverse outcomes from COVID-19, Dr. Lieb cites to an article showing that BMI, like age, poses a sliding scale of risk. Jennifer Lighter et al., Obesity in Patients Younger than 60 Years Is a Risk Factor for Covid-19 Hospital Admission, Clinical Infectious Diseases (Apr. 9, 2020), https://academic.oup.com/cid/advancearticle/doi/10.1093/cid/ciaa415/5818333. Patients under sixty years old with a BMI between thirty and thirty-four were twice as likely as patients with a BMI under thirty to be admitted to acute care due to a COVID-19 infection and 1.8 times as likely to be admitted to an intensive
15

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2718 Page 16 of 26

care unit. Id. While the Court might require more evidence regarding the

risk of obesity standing alone, these figures—and Dr. Lieb’s conclusion

that “Ms. Rodriguez Salabarria’s obesity exacerbates the risk of severe

infection or death” (ECF No. 84, PageID.2507)—further tilt the scales in

favor of finding that Rodriguez Salabarria is at substantially heightened

risk.

The Court now finds that Rodriguez Salabarria is at substantially

heightened risk of severe illness and/or death from COVID-19 because of

her hypertension and obesity.

B. Rosales Borboa

With respect to Rodriguez Salabarria, the parties disputed whether

hypertension is a risk factor in the first instance. With respect to Rosales

Borboa, the parties agree that moderate to severe asthma is a CDC-

recognized risk factor, see People with Moderate to Severe Asthma,

Centers

for

Disease

Control

and

Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/need-

extraprecautions/asthma.html (last updated Apr. 2, 2020); they dispute

only whether Rosales Borboa’s asthma qualifies as moderate to severe.

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In its May 12, 2020 Opinion, the Court noted that “neither party provides a definition, medical or otherwise, of the phrase ‘moderate to severe.’ The Court cannot apply traditional modes of statutory interpretation to discern the medical meaning of ‘moderate to severe,’ and therefore the Court cannot make a finding with respect to the severity of Rosales Borboa’s asthma.” (ECF No. 68, PageID.1927.) Accordingly, the Court ordered supplemental briefing on the meaning of “moderate to severe” and whether Plaintiff’s asthma qualifies as such. Id.
The parties agree on the medical definitions for moderate and severe asthma. Defendants, citing to the National Asthma Education and Prevention Program, explain that “the levels of asthma severity are intermittent, mild, moderate, and severe. Level of severity is assigned based on different features including the frequency of symptoms and the amount of medication needed to control exacerbations.” (ECF No. 80, PageID.2386.) Defendants provide as an exhibit a chart showing the nature and frequency of symptoms at each level. (ECF No. 80-3, PageID.2391.) Moderate asthma is characterized as daily symptoms, weekly nighttime awakenings, daily use of preventative medication, some limitation with respect to normal activity, and a Forced Expiratory
17

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2720 Page 18 of 26
Volume in One Second (FEV) measurement of between sixty and eighty
percent of the predicted value. (Id.) Severe asthma is characterized as
symptoms throughout the day, as many as seven nighttime awakenings
per week, use of preventative medication several times per day, extreme
limitation with respect to normal activity, and an FEV measurement of
less than sixty percent of the predicted value. (Id.)
Dr. Venters explains how to use this symptom chart to characterize
an individual’s asthma:
In order to determine that an asthmatic patient is not at increased risk of serious illness and death from COVID-19 (i.e., the patient only has mild intermittent or mild persistent asthma), correctional health services need to document the following:
a. Frequency of symptoms occur less than daily; b. Nighttime awakenings less than weekly; c. Use of rescue inhaler occurs less than daily; d. The patient has a FEV1 more than 60% expected with normal FVC ratio; e. Use of oral corticosteroids has occurred less than twice in past year.
Patients with asthma who do not have all of these basic elements of their assessment completed should be considered high risk until a full risk assessment can be performed. This is especially true for patients whose medical records indicate that their asthma is not very well controlled, as exhibited by:
18

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a. Symptoms more than twice per week; and/or, b. Use of rescue inhaler more than twice per week. (ECF No. 82-8, PageID.2491.) Against this backdrop, Defendants argue that the record to date does not support a finding that Rosales Borboa’s asthma is moderate to severe. Defendants acknowledge that Rosales Borboa claims to have used an inhaler multiple times per week since receiving a prescription ten years ago, but they contend that “medical records show that during his over two months of detention, he has not required an inhaler, nor has he made a single sick call to request evaluation or treatment for shortness of breath or asthma.” (ECF No. 80, PageID.2386.) Moreover, Defendants argue that there is no evidence that Rosales Borboa required the use of steroids since his initial hospitalization. (Id.) Defendants do not address whether Rosales Borboa satisfies the other elements of moderate or severe asthma. To the contrary, Plaintiffs argue that Rosales Borboa’s asthma is moderate. Plaintiffs include Rosales Borboa’s declaration. (ECF No. 83.) Rosales Borboa declares that his asthma moderately impairs day-to-day activities such as playing sports or going up stairs, and that it can be
19

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triggered by his emotional state or even without a clear cause, such as when he is walking or watching a movie. (Id. at PageID.2499.) He has been hospitalized four times for asthma, after three of which he was prescribed steroids. (Id. at PageID.2498–2499.) Prior to his detention, he used an inhaler two to three times per week. (Id. at PageID.2499.) He describes being refused an inhaler multiple times while in immigration detention:
Despite asking for an inhaler from staff at both Calhoun and Wayne County Jail, I have not been given one. Accordingly, I have been very careful to monitor my condition and avoid situations that will excite me and trigger breathing problems. I have even designated a corner of the jail where I go and practice breathing routines in order to return my breathing to a normal pace and avoid an attack.
(Id. at PageID.2499–2500.) Plaintiffs provide the declaration of Dr. Katherine Peeler, medical expert for Physicians for Human Rights (PHR), instructor of pediatrics at Harvard Medical School, and a pediatric critical care physician at Boston Children’s Hospital. (ECF No. 86.) Dr. Peeler reviewed Rosales Borboa’s medical records while in immigration detention dated from March 10, 2020 to March 27, 2020, photographs of two of his asthmarelated prescriptions dated June 4, 2016, his medical records as a child
20

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2723 Page 21 of 26
from Community Health and Social Services Center from January 11, 1996 to March 14, 2002, the April 24, 2020 Declaration of Ms. Caterina Amaro-Luedtke, and the May 17, 2020 Declaration of Mr. Emanuel Rosales Borboa. (Id. at PageID.2618.) Dr. Peeler concludes that
Mr. Rosales Borboa describes daily symptoms (needing an inhaler if he is doing “any level of physical activity . . . even going up the stairs”) and use of a rescue inhaler 2-3 times per week and daily for some weeks. Either of these two features of his disease place him in the moderate persistent asthma category.
(ECF No. 86, PageID.2620.) Dr. Peeler also notes that “Mr. Rosales Borboa’s frequent need for corticosteroids is concerning, and indicates that his asthma is not well-controlled. He would therefore also benefit from consultation by a pulmonologist as he may benefit from an inhaled controller medication (different from the rescue albuterol inhaler he currently has).” (Id.)
Rosales Borboa’s declaration is enough to rebut Defendants’ contention that he has not required the use of an inhaler since entering immigration detention. The evidence is thus one-sided: Plaintiffs have provided the declaration of a medical professional who, after reviewing Rosales Borboa’s medical history, medical records, and declaration,
21

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2724 Page 22 of 26
concluded that his asthma is moderate. Defendants contest this conclusion but provide no medical declaration of their own. The Court reiterates that the undersigned is not a medical professional, and so the Court’s opinion must be informed by the medical evidence on the record. That evidence demonstrates that Rosales Borboa’s asthma must be considered moderate, placing him at substantially heightened risk of severe illness and/or death from COVID-19.
C. Irreparable Injury and Likelihood of Success on the Merits Because the Court finds that both Rodriguez Salabarria and Rosales Borboa have underlying medical conditions that place them at substantially heightened risk of severe illness and/or death, the Court adopts in full the reasoning in its May 12, 2020 Opinion with respect to irreparable injury and the likelihood of success on the merits. The Court finds that both Rodriguez Salabarria and Rosales Borboa have a high likelihood of irreparable injury absent an injunction (ECF No. 68, PageID.1913–1920) and have shown a likelihood of success on the merits of both the subjective and objective components of a deliberate
22

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2725 Page 23 of 26
indifference claim.1 (Id. at PageID.1929–1951). The Court notes that the
number of COVID-19 cases in ICE detention facilities continues to grow
at an alarming pace: at the time of the Court’s May 12 Opinion, as of May
12, 2020, 881 immigration detainees have tested positive (of 1,736 tested
detainees), while ICE has confirmed forty-two cases of COVID-19 among
detention center employees (Id. at PageID.1915); as of May 20, 1,163
immigration detainees have tested positive (of 2,328 tested detainees)2,
with forty-four positive cases among detention center employees. ICE
Guidance on COVID-19, U.S. Immigration and Customs Enforcement,
https://www.ice.gov/coronavirus (updated May 20, 2020 at 5:30pm).
1 The Court requested supplemental briefing on the appropriate legal standard for Plaintiffs’ Fifth Amendment claim. (ECF No. 68, PageID.1932.) The parties provided helpful responses (ECF Nos. 80, 82), and the Court received a very thorough amicus brief. (ECF No. 81.) The emergency nature of Plaintiffs’ motion, the irreparable injury Plaintiffs face absent relief, and the nuanced Constitutional reasoning involved precludes the Court from issuing a reasoned opinion on this issue at this early point in the litigation. It is sufficient to note that Plaintiffs Rodriguez Salabarria and Rosales Borboa have shown a likelihood of success on the strictest standard that could apply—a deliberate indifference standard requiring both an objective and subjective component. The Court will issue a reasoned opinion on the applicability of a punishment standard when it addresses Plaintiffs’ claims on the merits.
2 There are now two confirmed cases of COVID-19 among detainees at the Calhoun County Correctional Facility. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated May 22, 2020 at 4:00pm). However, given the percentage of asymptomatic COVID-19 cases, the virus’ incubation period of up to fourteen days, and a lack of widespread testing, Defendants cannot reasonably assert that the outbreak is—or will continue to be—limited to these two cases.
23

Case 5:20-cv-10829-JEL-APP ECF No. 90 filed 05/23/20 PageID.2726 Page 24 of 26
D. Public Interest The public interest favors both Rodriguez Salabarria and Rosales Borboa’s release. In addressing the government justification for Rosales Borboa’s detention, Defendants note that in March 2020, “[a]n immigration judge found Borboa to be a danger and ordered him to remain detained pending his removal proceedings.” (ECF No. 80, PageID.2379.) Defendants do not provide the immigration judge’s reasoning for that determination, and Defendants do not now, nor have they ever, argued that either Rodriguez Salabarria or Rosales Borboa would be a danger to their communities or a flight risk upon release. Rodriguez Salabarria’s criminal history is limited to one conviction of unlawful entry in violation of 8 U.S.C. § 1325(a)(1). (ECF No. 52-4, PageID.1565.) Rosales Borboa’s criminal history consists of one conviction of driving without a license and one charge for carrying a concealed pistol. (ECF No. 52-5, PageID.1570.) Accordingly, as the Court found with Plaintiffs Alhalmi and Cardona Ramirez, the public’s interest in preserving public health and Rodriguez Salabarria and Rosales Borboa’s constitutional rights is greater than the public’s interest in their
24

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continued detention. (ECF No. 68, PageID.1952.) The public interest favors their release.
Because all four factors favor granting injunctive relief for Plaintiffs Rodriguez Salabarria and Rosales Borboa, the Court grants a preliminary injunction requiring their immediate release. CONCLUSION
For the reasons stated above, the Court GRANTS a preliminary injunction requiring Plaintiffs Rodriguez Salabarria and Rosales Borboa’s release from ICE Custody. Plaintiffs will be subject to the following restrictions: Plaintiffs are subject to fourteen days of home quarantine; Plaintiffs must comply with all Michigan Executive Orders; and Plaintiffs must appear at all hearings pertaining to their removal proceedings. Respondents may impose other reasonable nonconfinement terms of supervision.
Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in Michigan (related to COVID-19) is lifted or until further Court Order stating otherwise.
IT IS SO ORDERED.
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Dated: May 23, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 23, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

26

 
 Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3241 Page 1 of 117

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff,

and

QAID ALHALMI, BALDEMAR BARAJAS SANTOYO, WAAD BARASH, LEONARD BAROI, SERGIO BRITO, TOMAS CARDONA RAMIREZ, GUO YAN LIN CASTRO, RUBY BRISELDA ESCOBAR, JOSE MAURICIO GARCIA TOLEDO, JOSE GOMEZ SANTIZ, LENCHE KRCOSKA, YOHANDRY LEY SANTANA, SERGIO PEREZ PAVON, DAMARY RODRIGUEZ SALABARRIA, EMANUEL ROSALES BORBOA, RUDY SOSA CARILLO, AMER TOMA, JOHANNA WHERNMAN, WILLIAM WHERNMAN, and MIN DAN ZHANG,

No. 5:20-cv-10829-JEL-APP

Plaintiff-Intervenors, - against -

REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Defendants.

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3242 Page 2 of 117
SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION
ii

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3243 Page 3 of 117
INTRODUCTION 1. We are in the midst of a global pandemic on a scale not seen for over a century. Hundreds of thousands of people have died in a matter of months. Governments around the world are mandating social distancing, recognizing that physical separation is the only way to prevent a deadly, rapidly-spreading disease with no vaccine and no known cure. But that basic protection is entirely unavailable to people in civil immigration detention, who are incarcerated solely for the purpose of facilitating their removal—which in many cases is highly unlikely given the almost complete breakdown in international travel as a result of the pandemic. Across the country, well over one thousand immigration detainees are known to have been infected—including at least two at the Calhoun County Correctional Center (“Calhoun”)—and many thousands more have been potentially exposed. Two ICE detainees have died after testing positive for COVID-19. Without this Court’s timely intervention, many more immigration detainees will get sick, many will suffer severe medical consequences, and some will die. 2. Petitioner-Plaintiffs (“Plaintiffs”1) are noncitizens who are detained in ICE custody at Calhoun in the midst of the current COVID-19 pandemic. Conditions
1 The individuals bringing this action are Petitioners for purposes of habeas relief and Plaintiffs for purposes of injunctive and declaratory relief. Those against whom the action is brought are Respondents for purposes of habeas relief and Defendants for purposes of injunctive and declaratory relief. For simplicity, the terms Plaintiffs and Defendants will be used throughout.

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3244 Page 4 of 117
at Calhoun render it impossible for Plaintiffs to protect themselves though social distancing—where people remain at least six feet apart from each other—which is the only effective means of preventing the spread of COVID-19. Plaintiffs live, sleep, bathe and eat cheek by jowl with other detainees, and have limited access to masks, gloves, soap or hand sanitizer to guard against infection in such close quarters. The government’s own medical subject matter experts have described this as a “tinderbox scenario.”
3. The novel coronavirus that causes COVID-19 has quickly led to a global pandemic. No one is immune from infection. As of June 1, 2020, over 6 million people worldwide have received confirmed diagnoses of COVID-19, and over 371,000 of those people have died. In the United States, over 1.7 million people have received confirmed diagnoses of COVID-19, and over 102,600 of those people have died. And in Michigan, over 57,000 people have received confirmed diagnoses of COVID-19, and over 5,500 of those people have died. While our knowledge of the virus continues to evolve, COVID-19 is most likely to cause serious illness and death for older adults and those with certain underlying medical conditions or diseases, but it can also cause severe illness or death in healthy and young people. On average, the mortality rate for COVID-19 is ten times greater than influenza.
4. Patients of all ages with serious cases of COVID-19 require advanced medical support, including positive pressure ventilation and extracorporeal
2

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mechanical oxygenation in intensive care. That treatment can require the use of
specialized equipment, like ventilators. The pandemic has put ventilators in high
demand and short supply around the world, and has even led to shortages of less
specialized equipment such as face masks, gloves, and other personal protective
equipment (“PPE”).
5. Patients who do not die from serious cases of COVID-19 often face
prolonged recovery periods, including extensive rehabilitation from neurologic
damage. The COVID-19 virus can cause severe damage to lung tissue, sometimes
leading to a permanent loss of respiratory capacity. And, although the long-term
effects of COVID-19 on the body are not yet known, experts predict that even those
who have seemingly fully recovered from the disease could face ongoing health
concerns, including serious impairment of major organs like the heart, liver, kidney, brain, and endocrine and blood systems.2 These complications can lead to dialysis
dependence, neurologic injury, and heart failure.
2 Reid Wilson, COVID-19 shows signs of long-term harm in some recovered patients, The Hill (May 31, 2020), https://thehill.com/policy/healthcare/500199covid-19-shows-signs-of-long-term-harm-in-some-recovered-patients; Brian Vastag & Beth Mazur, Researchers warn covid-19 could cause debilitating longterm illness in some patients, The Washington Post (May 30, 2020), https://www.washingtonpost.com/health/could-covid-19-cause-long-termchronic-fatigue-and-illness-in-some-patients/2020/05/29/bcd5edb2-a02c-11eab5c9-570a91917d8d_story.html; Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors fear, Los Angeles Times (Apr. 10, 2020), https://www.latimes.com/science/story/2020-04-10/coronavirusinfection-can-do-lasting-damage-to-the-heart-liver.
3

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6. The COVID-19 virus is highly contagious and can be spread through
asymptomatic carriers. The only known effective measures to reduce the risk of
serious illness or death caused by COVID-19 are social distancing and meticulous
hygiene. As a result, unprecedented public health measures are being undertaken
across the country and around the world.
7. As recognized by the Centers for Disease Control and Prevention
(“CDC”), people in enclosed group environments, where they live, eat, bathe, and
sleep in close proximity, face substantially increased danger of contracting COVID-
19, as already evidenced by the rapid spread of the virus in jails, prisons, and detention centers around the country.3 For people confined in such facilities it is
virtually impossible to engage in the necessary social distancing and hygiene
required to mitigate the risk of transmission, even with the best-laid plans. The
enormity of the dangers faced by people in such facilities has become self-evident
3 CDC, COVID-19 in Correctional and Detention Facilities – United States, February-April 2020 (May 15, 2020), https://www.cdc.gov/mmwr/ volumes/69/wr/mm6919e1.htm (noting many facilities face significant challenges in controlling spread of coronavirus because of the “crowded dormitories, shared lavatories, limited medical and isolation resources, daily entry and exit of staff members and visitors, continual introduction of newly incarcerated or detained persons, and transport of incarcerated or detained persons in multiperson vehicles for court-related, medical, or security reasons”); CDC, Coronavirus Disease 2019 – People Who Are At Higher Risk (), https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html (listing “[p]eople who live in a nursing home or long-term care facility” as “at high-risk for severe illness from COVID-19”).
4

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as more of them are testing positive for COVID-19 with each passing day. As of
April 24, 2020, there were at least 9,437 people in U.S. prisons with confirmed cases of COVID-19.4 Just over a month later, as of May 27, 2020, there were at least 34,584 confirmed cases in U.S. prisons.5
8. For this reason, leading public health experts have recommended
significant reductions in the populations of detention facilities, as well as prioritizing
the prompt release from custody of people who are most vulnerable to COVID-19.
This dual strategy protects those with the greatest vulnerability to COVID-19 from
transmission of the virus and allows for greater risk mitigation for those who remain
detained, as well as for people working in detention facilities. Releasing as many
individuals as feasible, starting with the most vulnerable people, also reduces the
burden on the region’s limited health-care infrastructure, as it lessens the likelihood
that an overwhelming number of people will become seriously ill from COVID-19
at the same time.
4 Katie Park et al., Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking -the-spread-of-coronavirus-in-prisons; Cary Aspinwall & Joseph Neff, These Prisons Are Doing Mass Testing For COVID-19—And Finding Mass Infections, (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/these-prisonsare-doing-mass-testing-for-covid-19-and-finding-mass-infections (reporting that “prisons that do aggressive testing are finding that infection is spreading quickly.”).
5 Katie Park et al., A State-by-State Look at Coronavirus in Prisons, The Marshall Project, (May 29, 2020), https://www.themarshallproject.org/2020/05/01/a-stateby-state-look-at-coronavirus-in-prisons.
5

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9. For instance, as early as March 19, 2020, two medical subject matter experts for the Department of Homeland Security (“DHS”) sent a letter to Congress urging that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.” On April 7, 2020, House Oversight and Reform Committee Chairwoman Carolyn B. Maloney and Subcommittee on Civil Rights and Civil Liberties Chairman Jamie Raskin sent a letter to DHS, U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”) calling for the “immediate[] release [of] non-violent detainees, prioritizing those who are at higher risk for complications of coronavirus. Releasing these nonviolent detainees will prevent the unnecessary infection, sickness, and death of the men and women who work in these facilities and those who are detained.”6 On June 2, 2020, Dr. Scott A. Allen testified before the Senate Committee on the Judiciary to call for a significant reduction of the detainee population, particularly for those most vulnerable to COVID-19.7 Despite public health experts and public officials’ consensus, ICE has failed to meaningfully respond to protect the health and safety
6 House Committee on Oversight and Reform Press Release, Chairs Maloney and Raskin Call on DHS to Release Non-Violent Migrant Detainees to Prevent Coronavirus Outbreak in Detention Facilities (Apr. 7, 2020), https://oversight.house.gov/news/press-releases/chairs-maloney-and-raskin-callon-dhs-to-release-non-violent-migrant-detainees.
7 Examining Best Practices for Incarceration and Detention During COVID-19, U.S. Senate Committee on the Judiciary, Written Statement of Dr. Scott A. Allen, MD (June 2, 2020), https://www.judiciary.senate.gov/imo/media/doc/Scott%20 Allen%20Testimony.pdf
6

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of the many thousands of people in its custody, including the immigration detainees
at Calhoun. ICE has demonstrated significant shortcomings in testing,8 screening of
medically vulnerable detainees,9 and general precautionary measures including
social distancing and hygiene.
10. Despite ICE’s claims that it has taken appropriate protective measures,
outbreaks of COVID-19 at its detention centers have rapidly escalated in the past
several weeks. Already, ICE has confirmed four cases at Calhoun, and ten cases at
8 On April 17, 2020, ICE Director Albence confirmed “that only 400 detainees [had] been tested” for COVID-19, out of more than 32,000 nationwide. Over one hundred of those tests came back positive. See House Committee on Oversight and Reform Press Release, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020), https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-releaseasylum-seekers-and-other-non-violent-detainees. As of the date of this filing, ICE had tested 2,781 detainees, over half of whom tested positive. See U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated May 29, 2020).
9 See House Committee on Oversight and Reform Press Release, Chairs Maloney and Raskin Call on DHS to Release Non-Violent Migrant Detainees to Prevent Coronavirus Outbreak in Detention Facilities, supra n. 4 (noting that, as of April 17, 2020, “ICE [did] not plan to release any other detainees to slow the spread of coronavirus in detention facilities” but had only “released fewer than 700 vulnerable individuals and is continuing to detain more than 32,000 men and women”). ICE’s latest reporting reflects that as of May 4, 2020, it had only released only a couple hundred additional detainees (“over 900” total). See ICE, ICE Guidance on COVID-19 - Detention, https://www.ice.gov/coronavirus.
7

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the nearby St. Clair facility in Port Huron, Michigan,10 representing one out of every four of the approximately 40 immigration detainees housed there.11
11. The first positive case of COVID-19 at Calhoun was reported to the Court on May 11, 2020. (See Dkt. 68 at PageID.1914.) As of June 1, 2020, the facility had four confirmed cases.
12. Across Michigan, as of April 26, 2020, the Michigan Department of Corrections (“MDOC”) reported 1,031 cases and 32 deaths among Michigan state inmates, and 81 cases and one death among inmates in federal correctional facilities.12 By June 1, 2020, MDOC reported 3,933 cases and 69 deaths among Michigan inmates, and 146 cases and four deaths among inmates in federal correctional facilities.13 Both the sheer number of cases, as well as the drastic growth

10 See U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19:

Confirmed Cases (last updated May 29, 2020). As of the date of this filing, only

two of the four confirmed cases at Calhoun are listed on ICE’s website. On June

1, 2020, Counsel for Defendants informed Plaintiffs’ counsel and the Court that

an additional two detainees had tested positive, for a total of four confirmed case.

See Email from J. Newby to W. Barkholz et al. re: 5:20-cv-10829-JEL-APP -

Malam v Rebecca Adducci et al (June 1, 2020). Those two additional detainees

had been asymptomatic, and volunteered to be tested by the National Guard. Id.

11 Data on the total number of inmates, including pretrial and sentenced prisoners,

infected at St. Clair is not available, nor is data on the number of infected staff.

12 State

of

Michigan.

Coronavirus

Michigan

Data,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html

(last updated Apr. 26, 2020).

13 State

of

Michigan.

Coronavirus

Michigan

Data,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html

(last updated June 1, 2020).

8

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in diagnoses and deaths over the past month, demonstrate the particular
vulnerabilities of congregate settings like detention facilities. Governor Gretchen
Whitmer has recommended that individuals who are older or have underlying health conditions, among others, be considered for early release.14
13. The Plaintiffs are all immigrants detained at Calhoun.15 They bring this
action to protect themselves, and a class of similarly situated persons detained at
Calhoun, from COVID-19. If the Plaintiffs and class members continue to be
detained at Calhoun during the outbreak of COVID-19 under current facility
conditions without the ability to protect themselves through social distancing, they
face a danger that violates their constitutional right to safety in government custody,
Helling v. McKinney, 509 U.S. 25, 36 (1993), and is punitive because it is not
reasonably related to, and excessive in relation to, the government’s interest in
ensuring their availability for removal. Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473–74 (2015); Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
14 Michigan Executive Order 2020-29 (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422-,00.html. This order has since been extended multiple times, most recently through June 12, 2020. See Michigan Executive Order 2020-100 (May 22, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530037-,00.html (extending Michigan Executive Order 2020-62, which had extended Michigan Executive Order 2020-29).
15 This Court has issued preliminary injunctions requiring the release of Plaintiffs Toma, Alhami, Ramirez, Rodriguez Salabarria, and Rosales Borboa. (Dkt. 41, 68, 90.) Plaintiff Malam, who is separately represented, has also been released. (Dkt. 33.)
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14. Accordingly, the Plaintiffs and the class ask this Court to issue a Writ of Habeas Corpus for the Named Plaintiffs and the class ordering their release unless (1) the Defendants have demonstrated that the class member presents a risk of flight or danger that outweighs the risk of severe illness or death such that continued detention of the individual is reasonable under those circumstances; and (2) the Defendants have taken the steps that the Court has declared must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights and have reduced the population to the level that the Court has found can be detained consistent with social distancing and other COVID-19 prevention requirements. The Court should also grant corresponding class-wide declaratory relief. In the alternative, the Court should certify an issue class to decide questions common to the class. The Court should also grant corresponding injunctive relief to the named Plaintiffs.
15. Plaintiffs Qaid Alhalmi, Leonard Baroi, Waad Barash, Tomas Cardona Ramirez, Lenche Krcoska, Sergio Perez Pavon, Damary Rodriguez Salabarria, Emanuel Rosales Borboa, Yohandry Ley Santana, Amer Toma, Johanna Whernman, and William Whernman (the “Subclass Named Plaintiffs”) are older adults and/or have underlying medical conditions, which puts them at an even higher risk of serious COVID-19 infection than the general detained population. They seek to represent a subclass of similarly situated persons. Their detention, and that of the
10

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subclass they seek to represent, is unconstitutional because Defendants cannot ensure their reasonable safety given these Plaintiffs’ particular medical vulnerabilities and because their detention is punitive.
16. Accordingly, this Court should issue a Writ of Habeas Corpus for the Subclass Named Plaintiffs and the subclass on the ground that their continued detention violates the Due Process Clause, order their immediate release with appropriate precautionary public health measures, and grant corresponding classwide declaratory relief. In the alternative, the Court should certify an issue class to decide questions common to the subclass. The Court should also issue injunctive relief ordering the immediate release and barring the redetention of the Subclass Named Plaintiffs, as it has already done with respect to Plaintiffs Alhalmi, Cardona Ramirez, Toma, Rodriguez Salabarria, and Rosales Borboa. (Dkt. 41, 68, 90.)
17. Finally, because of the breakdown in international travel, the removal of Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria and Toma is not significantly likely in the reasonably foreseeable future, therefore their redetention is prohibited under Zadvydas v. Davis, 533 U.S. 678 (2001).
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PARTIES A. Subclass Named Plaintiffs16
18. Plaintiff Qaid Alhalmi is a 58-year-old citizen of Yemen who has been detained by ICE in Calhoun from September 2019 to May 13, 2020, when he was released pursuant to this Court’s preliminary injunction. He suffers from hypertension and type 2 diabetes, and must take insulin daily to control his high blood sugar. As a result of his age, hypertension, and diabetes, Mr. Alhalmi is at high risk for severe illness or death if he contracts COVID-19.
19. Plaintiff Waad Barash is a 56-year-old citizen of Iraq who has been detained by ICE in Calhoun since January 2020. Mr. Barash tested positive for tuberculosis when he arrived at Calhoun. He has not received any treatment or follow up testing while at Calhoun. He also suffers from high blood pressure, a hernia, and depression. He has not been given any medication to treat his high blood pressure while at Calhoun. Additionally, Mr. Barash has a history of smoking, and smoked a pack of cigarettes per day for ten years prior to his detention. As a result of his age, medical conditions, and history of smoking, Mr. Barash is at high risk for severe illness or death if he contracts COVID-19.
16 Plaintiffs’ Amended Petition and Complaint (Dkt. 43) included Plaintiff Julio Fernando Medina Euceda. Mr. Medina Euceda has been deported, and he voluntarily dismisses his claims as moot.
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20. Plaintiff Leonard Victor Baroi is a 23-year-old citizen of Bangladesh who has been detained by ICE in Calhoun since March 3, 2020. He suffers from hypertension and takes prescribed medication to control the condition. He also suffered from a bout of pneumonia in the winter of 2019. Prior to being detained, Mr. Baroi smoked on a daily basis for two years. As a result of his hypertension and history of smoking, Mr. Baroi is at high risk for severe illness or death if he contracts COVID-19.
21. Plaintiff Tomas Cardona Ramirez is a 38-year-old citizen of Guatemala who was detained by ICE in Calhoun from February 2020 to May 13, 2020, when he was released pursuant to this Court’s preliminary injunction. Mr. Cardona Ramirez suffers from type 2 diabetes, and takes insulin and other medication to regulate his blood sugar. He also suffers from hypertension, and has been prescribed medication, including Lipsinopril, an ACE inhibitor, to treat this condition. As a result of his diabetes and hypertension, Mr. Cardona Ramirez is at high risk for severe illness or death if he contracts COVID-19.
22. Plaintiff Lenche Krcoska is a 52-year-old citizen of Macedonia who has been detained by ICE in Calhoun since January 9, 2020. She suffers from rheumatoid arthritis and a heart arrhythmia. Her rheumatoid arthritis causes pain, swelling, and deformation of her joints. She has also been diagnosed with a severe
13

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depressive episode and insomnia. As a result of her age and medical conditions, Ms. Krcoska is at high risk for severe illness or death if she contracts COVID-19.
23. Plaintiff Yohandry Ley Santana is a 33-year-old citizen of Cuba who has been detained by ICE in Calhoun since June 2019. He suffers from asthma, with which he was diagnosed at eight months old, and has experienced severe breathing problems that have caused him to be hospitalized numerous times throughout his life. On two occasions, Mr. Ley Santana was intubated due to his respiratory issues. In January 2019, Mr. Ley Santana was hospitalized and diagnosed with severe bronchitis and severe allergies to pollen and dust. Mr. Ley Santana has been prescribed a medication to control his allergies and an Albuterol inhaler for his asthma, but he has not received either in detention. His asthma causes him to experience shortness of breath on a daily basis and as well as regular nighttime awakenings from breathlessness. As a result of his respiratory conditions, Mr. Ley Santana is at high risk for severe illness or death if he contracts COVID-19.
24. Plaintiff Sergio Perez Pavon is a 36-year-old citizen of Mexico who has been detained by ICE in Calhoun since February 2020. He suffers from type 2 diabetes, and has taken medication to treat his diabetes since 2011. At Calhoun, he has been treated with a different medication, and as a result he has become insulin dependent for the first time. As a result of his diabetes, Mr. Perez Pavon is at high risk for severe illness or death if he contracts COVID-19.
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25. Plaintiff Damary Rodriguez Salabarria is a 46-year-old citizen of Cuba. Ms. Rodriguez Salabarria was detained by ICE in McAllen, Texas from August 1, 2019 to August 10, 2019, when she was transferred to Calhoun. She remained at Calhoun until about May 24, 2020, when she was released pursuant to this Court’s preliminary injunction. Ms. Rodriguez Salabarria suffers from hypertension, chronic gastritis, and a peptic ulcer, as well as gastroesophageal reflux. She takes daily medication for all of these conditions. Prior to entering the United States in August 2019, Ms. Rodriguez Salabarria had twice been admitted to a hospital intensive care unit due to acute pancreatitis. She has also undergone both an appendectomy and cholecystectomy (gallbladder removal), and suffered from multiple kidney infections. As a result of her medical conditions, Ms. Rodriguez Salabarria is at high risk for severe illness or death if she contracts COVID-19.
26. Plaintiff Emanuel Rosales Borboa is a 35-year-old citizen of Mexico who was detained by ICE in Calhoun from March 9, 2020 to May 28, 2020,17 when he was released pursuant to this Court’s preliminary injunction. Mr. Rosales Borboa has suffered from asthma for over ten years and uses a prescribed inhaler multiple times per week, as well as Prednisone, an immunosuppressant medication used to
17 Between May 7 and May 28, 2020, Mr. Rosales Borboa was detained in Wayne County Jail, but he was still constructively in ICE custody during that time.
15

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treat, among other things, breathing problems. As a result of his asthma, Mr. Rosales Borboa is at high risk for severe illness or death if he contracts COVID-19.
27. Plaintiff Amer Toma is a 55-year-old citizen of Iraq who was detained by ICE in Monroe County Jail from September 21, 2019 to February, 2020, at which point he was moved to Calhoun. He was released from Calhoun on April 22, 2020, pursuant to this Court’s temporary restraining order, which has since been converted to a preliminary injunction. In 2015, Mr. Toma was diagnosed with prostate cancer, but never received treatment. Mr. Toma is also pre-diabetic and suffers from hypotension. Additionally, he has two bullets in his body that have caused him to experience serious back pain and mobility problems for over thirty years. About six or seven years ago Mr. Toma was hospitalized with a groin infection resulting from one of the bullets. While at Calhoun, Mr. Toma used a wheelchair due to his back pain and limited mobility. As a result of his age and medical conditions, Mr. Toma is at high risk for severe illness or death if he contracts COVID-19.
28. Plaintiff Johanna Whernman is a 57-year-old citizen of Sweden who has been detained by ICE in Calhoun since February 19, 2020. She has suffered from asthma since childhood, and has been prescribed a Symbicort inhaler. She also suffers from chronic bronchitis and hypertension. She has been hospitalized multiple times for her chronic bronchitis, most recently in February 2020 at the Mayo Clinic, due to side effects from her asthma medication. While at Calhoun, Ms.
16

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Whernman has not had consistent access to her inhaler. As a result of her age and medical conditions, Ms. Whernman is at high risk for severe illness or death if she contracts COVID-19.
29. Plaintiff William Whernman is a 22-year-old citizen of Sweden who has been detained by ICE in Calhoun since February 19, 2020. He suffers from asthma, with which he was diagnosed in February 2020 at the Mayo Clinic and for which he has been prescribed a Symbicort inhaler. He has a BMI of 30.85. While at Calhoun, Mr. Whernman has not had consistent access to his inhaler. As a result of his medical conditions, Mr. Whernman is at high risk for severe illness or death if he contracts COVID-19.
B. Other Named Plaintiffs18 30. Plaintiff Baldemar Barajas Santoyo is a 47-year-old citizen of
Mexico who was detained by ICE in Calhoun between February 12, 2020 until May 20, 2020.19 As a result of the conditions of confinement at Calhoun, Mr. Barajas is at high risk of contracting COVID-19.
18 Plaintiffs’ Amended Petition and Complaint (Dkt. 43) included Isaac Orta Vieyra. Mr. Orta Vieyra has obtained immigration relief and has been released from ICE custody. He voluntarily dismisses his claims as moot.
19 Mr. Barajas Santoyo was released on bond. Although he remains a plaintiff in this action, he is not seeking to represent the class or subclass.
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31. Plaintiff Sergio Brito is a 37-year-old citizen of Mexico who has been detained by ICE in Calhoun since December 9, 2019. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
32. Plaintiff Guo Yan Lin Castro is a 45-year-old citizen of China who has been detained by ICE in Calhoun since October 2019. Ms. Castro suffers from gastroenteritis and severe depression, for which she takes medication. As a result of the conditions of confinement at Calhoun, Ms. Castro is at high risk of contracting COVID-19.
33. Plaintiff Ruby Briselda Escobar20 is a 31-year-old citizen of El Salvador who was detained by ICE at Calhoun from November 18, 2018 to April 6, 2020. After she moved to intervene in this action, Ms. Escobar was released by ICE under an order of supervision and release conditions. She remains subject to redetention at any time. Ms. Escobar suffers from several health problems, including a brain aneurysm and heart problems that cause her to experience chest pain, difficulty breathing, weakness, and sweating. Ms. Escobar developed her brain aneurysm in 2013, as a result of injuries she sustained while held hostage and tortured by human traffickers. Because of her brain aneurysm, she has headaches, dizziness, nausea, vomiting, double vision, trouble speaking clearly, and
20 Although she remains a plaintiff in this action, Ms. Escobar is not seeking to represent the class or subclass.
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forgetfulness. As a result of her brain aneurysm and heart problems, Ms. Escobar is at high risk for severe illness or death if she contracts COVID-19.
34. Plaintiff Jose Mauricio Garcia Toledo is a 45-year-old citizen of Mexico who has been detained by ICE in Calhoun since February 2020. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
35. Plaintiff Jose Gomez Santiz is a 23-year-old citizen of Mexico who has been detained by ICE since January 2020. He was transferred to Calhoun from Gratiot County Jail in Ithaca, Michigan on February 14, 2020, and has been detained at Calhoun since then. As a result of the conditions of confinement at Calhoun, Mr. Gomez Santiz is at high risk of contracting COVID-19.
36. Plaintiff Rudy Sosa Carillo is a 23-year-old citizen of Guatemala who has been detained by ICE in Calhoun since February 2020. As a result of the conditions of confinement at Calhoun, Mr. Sosa Carillo is at high risk of contracting COVID-19.
37. Plaintiff Min Dan Zhang is a 49-year-old citizen of China who has been detained by ICE in Calhoun since August 22, 2019. As a result of the conditions of confinement at Calhoun, Ms. Zhang is at high risk of contracting COVID-19.
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C. Respondent-Defendants (“Defendants”) 38. Defendant Rebecca Adducci is the Detroit District Director of ICE.
In that position, she is responsible for carrying out ICE’s immigration detention operations at Calhoun. Defendant Adducci is a legal custodian of Plaintiffs, and the proper respondent for a habeas petition. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). She is sued in her official capacity.
39. Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. In that position, he is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
40. Defendant Chad Wolf is Acting Secretary of DHS. In that position, he is responsible for the enforcement of the immigration laws and supervises Ms. Adducci at ICE Detroit Field Operations. Defendant Wolf is a legal custodian of Plaintiffs. He is sued in his official capacity.
41. Defendant William P. Barr is Attorney General of the United States and chief officer of the U.S. Department of Justice. He is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, routinely does and transacts business in the Eastern District of Michigan, and is a legal custodian of Plaintiff. He is sued in his official capacity.
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42. Defendant ICE is a federal law enforcement agency within DHS. ICE is responsible for criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. ERO, a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.21
JURISDICTION AND VENUE 43. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 and § 2243 (habeas jurisdiction) and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 44. Venue is proper in the U.S. District Court for the Eastern District of Michigan under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
21 The petition/complaint filed by Janet Malam named Matthew T. Albence, Chad Wolf, William P. Barr, and ICE as Respondent-Defendants. Plaintiffs here seek injunctive and declaratory, but not habeas relief, from those defendants. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). The petition/complaint filed by Ms. Malam also named Michigan Department of Corrections Director Heidi E. Washington as a Respondent-Defendant. Plaintiffs here do not bring claims against Ms. Washington.
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FACTS
A. COVID-19 Poses a Grave Risk of Harm, Including Serious Illness or Death
45. COVID-19 is a disease that has reached pandemic status. As of June 1,
2020, at least 6 million people worldwide have confirmed diagnoses, including over
1.7 million people in the United States. Over 371,000 people have died as a result
of COVID-19 worldwide, including at least 102,600 in the United States.22 In
Michigan, there are at least 57,000 confirmed cases and 5,500 deaths.23 The
transmission of COVID-19 is expected to continue grow to exponentially.
46. Everyone is at risk from COVID-19, with even young and otherwise
healthy people becoming gravely ill or dying from the disease. Older people and
22 Coronavirus disease 2019 (COVID-19) Situation Report – 133, World Health Organization (June 1, 2020). These numbers have increased drastically since Plaintiffs Escobar and Toma first filed this Petition on April 5, 2020. At that time, there were only 1,056,159 confirmed cases worldwide, including roughly 241,703 people in the United States, and 57,206 people had died worldwide, including just 5,854 in the United States. (See Dkt. 17, at 1.) Likewise, when the Plaintiff Class filed its Amended Petition on April 26, 2020, there 2.8 million confirmed cases worldwide, including over 899,000 people in the United States, and 193,000 people had died worldwide, including about 46,000 in the United States. (See Dkt. 43 at 2, 17.)
23 State of Michigan. Coronavirus Michigan Data, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last accessed June 1, 2020). The number of confirmed cases has more than quadrupled since Plaintiffs Escobar and Toma filed their petition on April 5, 2020, and the number of deaths has increased by more than 10 times over the same period. (See Dkt. 17 at 11.) When the Amended Petition was filed on April 26, 2020, there were around 37,778 confirmed cases in Michigan and 3,315 deaths. (See Dkt. 43 at 39.)
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people with certain medical conditions face even greater chances of serious illness or death from COVID-19. Our current knowledge of COVID-19 is limited, with new data and studies released practically daily.
47. We do know that COVID-19 causes fever, cough, and shortness of breath, which can be severe. The COVID-19 virus can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases can cause a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle, which can also affect the heart’s electrical system, reducing the heart’s ability to pump. Reduced pumping can lead to rapid or abnormal heart rhythms in the short term, and to long-term heart failure that limits exercise tolerance and the ability to work. In addition, COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine-release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.
48. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
49. People who contract COVID-19, including even some younger and healthier people, may require supportive care, which includes supplemental oxygen,
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positive pressure ventilation, and, in extreme cases, extracorporeal mechanical oxygenation. People in higher risk categories will likely need advanced support, which requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians. This level of support can quickly exceed local health-care resources.
50. While some class members are healthier than others, the entire class is at grave risk of contracting COVID-19 and facing serious harm given the current conditions in Calhoun. The CDC has reported that people under the age of 50 have consistently made up 20-30% of coronavirus hospitalizations in the United States since early March.24 And the World Health Organization (“WHO”) has reported that, globally, 10–15% of adults under the age of 50 who contract COVID-19 have moderate to severe cases.25
24 See CDC, COVID-19 Laboratory-Confirmed Hospitalizations: COVID-19Associated Hospitalizations By Age, https://gis.cdc.gov/grasp/COVIDNet/ COVID19_5.html (last updated May 23, 2019)
25 See World Health Organization, Statement – Older people are at highest risk from COVID-19, but all must act to prevent community spread, http://www.euro.who.int/en/health-topics/health-emergencies/coronaviruscovid-19/statements/statement-older-people-are-at-highest-risk-from-covid-19,but-all-must-act-to-prevent-community-spread (Apr. 2, 2020).
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51. Some young people who become seriously ill or die from COVID-19 have pre-existing medical conditions, but many do not.26 For example, in New York,
36 percent of people between age 30 and 39 who died from the virus had no preexisting conditions.27
52. Doctors and scientists do not know with certainty why some otherwise
healthy young people are so susceptible to COVID-19, but some evidence suggests
that exposure to larger viral loads—such as occurs with close, in-person interaction in enclosed spaces, at short distances—may lead to more serious infection.28
53. As another federal court held in provisionally certifying a class of
immigration detainees: It is a “troubling fact that even perfectly healthy detainees
are seriously threatened by COVID-19. To be sure, the harm of a COVID-19
infection will generally be more serious for some petitioners than for others. Yet it
cannot be denied that the virus is gravely dangerous to all of us.” Savino v. Souza,
20-cv-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020).
26 See Ariana Eunjung Cha, Young and middle-aged people, barely sick with covid19, are dying of strokes, Washington Post (Apr. 25, 2020), https://www.washingtonpost.com/health/2020/04/24/strokes-coronavirus-youngpatients/.
27 See Chris Mooney, et. al., Hundreds of young Americans have now been killed by the coronavirus, data shows, Washington Post (Apr. 8, 2020), https://www.washingtonpost.com/health/2020/04/08/young-peoplecoronavirusdeaths/.
28 See Joshua Rabinowitz and Caroline Bartman, These Coronavirus Exposures Might be the Most Dangerous, New York Times (Apr. 1, 2020), https://www.nytimes.com/2020/04/01/opinion/coronavirus-viral-dose.html.
25

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3268 Page 28 of 117
54. On April 29, 2020, a federal district court in California certified a class and granted a preliminary injunction for detainees at two ICE facilities in California. See Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *3 (N.D. Cal. Apr. 29, 2020) (granting such relief despite fact that ICE argued it “ha[d] discovered no cases of Covid-19 at the two facilities”).
55. The need for care, including intensive care, and the likelihood of death are much higher from COVID-19 infection than from influenza. Sources differ, but all accounts are grave: sources report fatality rates ranging from nearly 2% to over 15% for populations at high risk for complications from COVID-19, like the elderly or those with underlying medical conditions. Moreover, recent studies estimate that the COVID-19 fatality rate for the general population ranges from four to fifteen times higher than the fatality rate of a severe seasonal influenza, even in countries with highly effective healthcare systems.29
56. Patients who do not die from COVID-19, especially those in high-risk categories, often experience a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity. Moreover, the ongoing sequelae of COVID-19 are unknown, and physicians warn that the results could include decreased respiratory
29 See, e.g., Shawn Radcliffe, Healthline, Here’s Why COVID-19 Is Much Worse Than the Flu, https://www.healthline.com/health-news/why-covid-19-isnt-theflu#Higher-fatality-rate (May 14, 2020).
26

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3269 Page 29 of 117
ability for life as well as increased vulnerability to other medical issues that arise in the future.
57. There is neither a vaccine against COVID-19 nor any known medication to prevent or treat infection from COVID-19. On March 26, 2020, Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases (NIAID), estimated that a vaccine could be developed in 18 months. This estimate is optimistic. Vaccines typically take between eight and 10 years to develop. Vaccines usually must be tested in four phases before they attain regulatory approval: (1) animal testing, (2) small-group human testing to assess safety and monitor immune response, (3) medium-sized group testing to assess members of atrisk groups, and (4) large-scale testing on thousands of people. Moreover, more time is needed after approval to distribute the vaccine across the country. With these long trials and distribution schedules in mind, other experts have expressed reservations about the 18-month estimate given by Dr. Fauci.
58. Nor is there widespread testing or reliable antibody testing, other measures which experts say could eventually help to mitigate outbreaks of the disease.30
30 See, e.g., Sheryl Gay Stolberg et al., Testing Remains Scarce as Governors Weigh Reopening States, N.Y. Times (Apr. 25, 2020), https://www.nytimes.com/2020/04/25/us/politics/virus-testing-shortages-statestrump.html (“As governors decide about opening their economies, they continue to be hampered by a shortage of testing capacity, leaving them without the
27

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3270 Page 30 of 117
59. The only known effective measures to reduce the risk of illness, or death from COVID-19 are to prevent people from being infected in the first place. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting people from COVID19.
60. Projections by the CDC indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the United States alone.

information that public health experts say is needed to track outbreaks and contain

them.”); Rob Stein, Study Raises Questions About False Negatives From Quick

COVID-19 Test, NPR (Apr. 21, 2020), https://www.npr.org/sections/health-

shots/2020/04/21/838794281/study-raises-questions-about-false-negatives-from-

quick-covid-19-test (reporting that a popular test developed by Abbott

Laboratories “appears to be the least accurate test now in common use,” following

a study done by the Cleveland Clinic); Laurie McGinley, Dozens of coronavirus

antibody tests on the market were never vetted by the FDA, leading to accuracy

concerns,

Washington

Post.

(Apr.

19,

2020),

https://www.washingtonpost.com/health/2020/04/19/fda-antibody-tests-

coronavirus-review/ (reporting that in mid-March 2020, the Food and Drug

Administration allowed “more than 90 [antibody tests] on the market without prior

review, including some marketed fraudulently and of dubious quality.”).

28

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3271 Page 31 of 117
61. As of June 1, 2020, there were 57,532 confirmed cases of COVID-19 and 5,516 deaths from COVID-19 in Michigan.31 The number of confirmed cases has more than quadrupled since Plaintiffs Escobar and Toma filed their petition on April 5, 2020, and the number of deaths has increased by more than 10 times over the same period.32
62. The COVID-19 outbreak in Michigan has resulted in unprecedented health measures to facilitate and enforce social distancing. On March 24, Governor Gretchen Whitmer issued Executive Order 2020-21, suspending through April 13 all activities unnecessary to sustain or protect life.33 The order requires employees to work from home unless they are considered “essential” or they work in jobs related to public safety, health care, or other critical industries. The order also requires individuals who leave their home to adhere to social distancing measures recommended by the CDC, including “remaining at least six feet away from people outside the individual’s household to the extent feasible under the circumstances.”
31 State of Michigan. Coronavirus Michigan Data, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last accessed June 1, 2020).
32 See Plaintiff-Intervenors Motion for Temporary Restraining Order (Dkt. 17 at PageID.264.)
33 Michigan Executive Order 2020-21 (Mar. 24, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626-,00.html.
29

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3272 Page 32 of 117
63. Governor Whitmer has repeatedly extended the initial Executive Order
2020-21, with slight modifications each time, and the basic restrictions remain in
place at the time of this filing.34
64. On June 1, 2020, Governor Whitmer issued Executive Order 2020-110,
which allows certain businesses to reopen with restrictions on June 4 and June 8,
2020.35 However, Executive Order 2020-110 is clear that social distancing rules will
still apply—“[i]ndoor social gatherings and events of more than 10 people [remain]
prohibited” and “Michiganders . . . should continue to take all reasonable precautions
to protect themselves, their co-workers, their loved ones, and their communities.”
The state of emergency also remains in effect in Michigan.
34 Michigan Executive Order 2020-42 (Apr. 9, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182-,00.html; Michigan Executive Order 2020-59 (Apr. 24, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-526894-,00.html; Michigan Executive Order 2020-70 (May 1, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-527847-,00.html; Michigan Executive Order 2020-77 (May 7, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-528460-,00.html; Michigan Executive Order 2020-92 (May 18, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-529476-,00.html; Michigan Executive Order 2020-96 (May 21, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-529860-,00.html; Michigan Executive Order 2020-100 (May 22, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530037-,00.html.
35 Michigan Executive Order 2020-110 (June 1, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530620-,00.html.
30

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3273 Page 33 of 117

65. Moreover, public health experts including Dr. Fauci have warned of the possibility of a spike in cases over the coming weeks in closed environments like nursing homes and prisons as restrictions are relaxed in other jurisdictions.36 At least one study has confirmed that we must be prepared for at least another 18 to 24 months of significant COVID-19 activity, with hot spots popping up periodically across the country and second and third “waves” of increased transmission that will continue to require measures including social distancing, contact tracing and isolation.37 A separate new model suggests that there are 24 states in the United States in which the reproduction number—i.e., the number of new infections that an infected person is likely to cause—is still above the critical threshold of 1.0, which signals that the spreading is still accelerating.38 Because of the unique aspects of jails, prisons and detention settings, experts warn that even accurate assessments of

36 Donald G. McNeil Jr., As States Rush to Reopen, Scientists Fear a Coronavirus

Comeback, The New York Times (updated May 14, 2020),

https://www.nytimes.com/2020/05/11/health/coronavirus-second-wave-

infections.html.

37 Kristine A. Moore, et al., COVID-19: The CIDRAP Viewpoint: Part 1: The Future

of the COVID-19 Pandemic: Lessons from Pandemic Influenza, Center For

Infectious Disease Research & Policy, Univ. Of Minnesota (Apr. 30, 2020),

https://www.cidrap.umn.edu/sites/default/files/public/downloads/cidrap-

covid19-viewpoint-part1_0.pdf (last accessed May 4, 2020).

https://int.nyt.com/data/documenthelper/6926-

mayhhsbriefing/af7319f4a55fd0ce5dc9/optimized/full.pdf#page=1

38 H. Juliette T. Unwin et al., Report 23: State-level tracking of COVID-19 in the

United States, Imperial College COVID-19 Response Team, at 8 fig. 4 (May 24,

2020),

https://www.imperial.ac.uk/media/imperialcollege/medicine/mrc-

gida/2020-05-21-COVID19-Report-23.pdf.

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Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3274 Page 34 of 117
the safety of gradually re-opening states and cities will not reflect the specific risks in jails and prisons.
B. COVID-19 Spreads Rapidly in Congregate Settings Like ICE Detention Centers and Correctional Facilities 66. The risk of widespread COVID-19 infection is especially great in
congregate settings like jails and immigration detention centers, where detainees are unable to socially distance or practice the necessary hygiene strategies to mitigate infection or spread of the disease.
67. This Court has already ordered the release of Plaintiffs Malam and Toma, recognizing that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions[.]” (Dkt. 41 at PageID.902.)
68. This Court has also already ordered the release of Plaintiffs Alhami, Cardona Ramirez, Rodriguez Salabarria, and Rosales Borboa. (Dkt. 68, 90.) In ordering the release of Plaintiffs Alhami and Cardona Ramirez, this Court recognized “the stark reality that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection.” (Dkt. 68 at PageID.1915.) This Court further found that, for persons with risk factors for
32

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3275 Page 35 of 117
severe illness or death, “no conditions of confinement at [Calhoun] can ensure a civil detainee’s reasonable safety.”39 (Dkt. 90 at PageID.2711.)
69. In addition, this Court has ordered release of other people held in civil detention in Michigan in other actions. See, e.g. Fofana v. Albence, No. 2:20-cv10869-GAD-DRG, Dkt. 15 (E.D. Mich. Apr. 15, 2020); Zaya v. Adducci, No. 5:20cv-10921-JEL-APP, Dkt. 9 (E.D. Mich. Apr. 18, 2020); Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276 (E.D. Mich. May 9, 2020); see also Cameron v. Bouchard, No. 20-cv-10949, Dkt. 111, (E.D. Mich. May 31, 2020) (establishing process to consider release of medically vulnerable subclass of inmates at Oakland County Jail).
70. Likewise, courts across the country are also ordering the release of people in civil immigration custody in recognition of the threat posed by COVID19 in congregate settings. See e.g., Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th Cir. Mar. 24, 2020); Basank v. Decker, No. 20-cv-2518, --- F. Supp. 3d ----, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Bravo Castillo v. Barr, No. 20-605-TJH (AFMx), --- F. Supp. 3d ----, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, No. 20-cv-2472, --- F.3d ----, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Thakker v. Doll, No. 1:20-CV-480, --- F.3d ----, 2020
39 For those detainees who do not meet the CDC’s high-risk criteria, this Court announced that its inquiry would “focus on what set of conditions are necessary to ensure their reasonable safety in confinement.” (Dkt. 90 at PageID.2711.)
33

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3276 Page 36 of 117
WL 1671563 (M.D. Pa. Mar. 31, 2020); Hernandez v. Wolf, No. 20-cv-617, Dkt. 17 (C.D. Cal. Apr. 1, 2020); Robles v. Wolf, No. 5:20-cv-627-TJH-GJS, Dkt. 32, 35-39 (C.D. Cal. Apr. 2, 2020); Hope v. Doll, No. 20-cv-00562, ECF No. 11 (M.D. Pa. Apr. 7, 2020), motion for reconsideration denied, ECF No. 22 (Apr. 10, 2020); Bahena Ortuño v. Jennings, No. 20-cv-2064, 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020); Rafael L.O. v. Tsoukaris, No. 2:20-cv-3481-JMV, 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Bent v. Barr, No. 4:19-cv-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); John Doe v. Barr, No. 3:20-cv-02141-LB, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020); Ixchop Perez v. Wolf, No. 19-cv-05191, 2020 WL 1865303 (N.D. Cal. Apr. 14, 2020); Arriaga Reyes v. Decker, No. 20-cv-3600, ECF No. 27 (D.N.J. Apr. 14, 2020); Vazquez Barrera v. Wolf, No. 20-cv-01241, 2020 WL 1904497 (S.D. Tex. April 17, 2020); Amaya-Cruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123 (N.D. Ohio Apr. 18, 2020); Durel B. v. Decker, No. 2:20-cv-03430-KM, 2020 WL 1922140 (D.N.J. Apr. 21, 2020); Hernandez Roman v. Wolf, No. 5:20-cv-00768TJH-PVC, Dkt. 52 (C.D. Cal. Apr. 23, 2020); Hernandez Roman v. Wolf, No. 5:20cv-00768-TJH-PVC, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020); Wilson v. Williams, No. 4:20-cv-00794 (N.D. Oh. Apr. 22, 2020); Hernandez v. Kolitwenzew, No. 2:20-cv-02088-SLD (C.D. Ill. Apr. 23, 2020); Essien v. Barr, No. 20-cv-1034WJM (D. Col. Apr. 24, 2020); Chavez Garcia v. Acuff, No. 20-CV-357-NJR, 2020 WL 1987311 (S.D. Ill. Apr. 27, 2020); Pietro Refunjol v. Adducci, No. 2:20-cv-2099
34

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3277 Page 37 of 117
(S.D. Oh. Apr. 27, 2020); Coreas v. Bounds, No. TDC-20-cv-0780 (D. Ma. Apr. 30, 2020); Favi v. Kolitwenzew, No. 2:20-cv-2087 (C.D. Ill. May 4, 2020); Rodriguez Alcantara v. Archambeault, No. 3:20-cv-00756-DMS-AHG (S.D. Cal. May 1, 2020); Savino v. Souza, No. 20-cv-10617-WGY (D. Mass. May 12, 2020); Yeury v. Decker, No. 20-cv-5071 (May 11, 2020); Barbecho v. Decker, No. 20-v-2821 (AJN) (S.D.N.Y. May 15, 2020); Geovani M.-O. v. Decker, No. 20-5053 (KM), 2020 WL 2511428 (D.N.J. May 15, 2020); Herrera-Herrera v. Kolitwenzew, No. 20-cv2120, Dkt. 36 (C.D. Ill. May 19, 2020); Asmed B. v. Decker, No. 20-3734 (MCA), 2020 WL 2539351 (D.N.J. May 19, 2020); Anthony O. v. Decker, No. 20-3856 (MCA), 2020 WL 2571897 (D.N.J. May 20, 2020); Robenson v. Decker, No. 205141 (KM), 2020 WL 2611544 (D.N.J. May 22, 2020); Jose B.R. v. Tsoukaris, No. 20-3347, 2020 WL 2744586 (D.N.J. May 27, 2020). These orders recognize that “[t]he risk of contracting COVID-19 in tightly confined spaces, especially jails, is now exceedingly obvious” and that “public health authorities predict [COVID-19] will especially impact immigration detention centers.” Basank, 2020 WL 1481503, at *5; Xochihua-Jaimes, 2020 WL 1429877, at *1.
71. In numerous cases, courts have ordered releases, even where the plaintiffs do not fall within narrow definitions of those at higher risk to COVID-19. See, e.g., Bravo Castillo v. Barr, No. 20-605-TJH (AFMx), --- F. Supp. 3d ----, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Jimenez v. Wolf, No. 1:18-cv-10225-MLW,
35

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3278 Page 38 of 117
Dkt. 507, Memorandum and Order (D. Mass. Mar. 26, 2020); Sallaj v. U.S. Immigration & Customs Enf’t, No. 1:20-cv-00167-JJM-LDA, Dkt. 18 (D.R.I. Apr. 24, 2020); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *3 (N.D. Cal. Apr. 29, 2020); Savino v. Souza, No. 20-cv-10617-WGY (D. Mass. May 12, 2020); Yanes v. Martin, No. 1:20-cv-216-MSM-PAS, Dkt. 59 (D.R.I. June 2, 2020).
72. Consistent with these cases, this Court recently concluded that while “the presence of a CDC risk factor [i]s dispositive of a person’s increased risk, the inverse is not true where public health or other evidence on the record can show a Plaintiff is nonetheless at substantial risk.” (Dkt. 90 at PageID.2709–10.)
73. Given the great risk of infection posed by COVID-19, the fact that prisoners and detainees cannot engage in proper hygiene and isolate themselves from infected residents or staff, and because the testing is inadequate to detect whether residents or staff are carrying the disease asymptomatically, “Defendants cannot reasonably assert that the outbreak is—or will continue to be—limited to these two cases.” (Dkt. 90 at PageID.2725 n.2.)
74. The staff at jails like Calhoun also have a higher risk of contracting coronavirus due to the impossibility of social distancing. Accordingly, detainees and other facility staff are at very high risk for contracting the virus. It is only a
36

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3279 Page 39 of 117
matter of time until Calhoun faces a crisis similar to those seen at other detention centers.
75. The available evidence bears this out. Nationwide, ICE reported 317 confirmed cases of COVID-19 among immigration detainees across 30 detention facilities, as of April 24, 2020. By June 1, 2020, that number was up to 1,461 confirmed cases across 63 detention facilities, with 2 deaths among detainees who had tested positive. As of June 1, 2020, ICE also reports 44 confirmed cases amongst ICE employees at 15 detention centers and 123 among ICE employees not assigned to detention facilities. But those numbers vastly understate the problem because ICE is doing only limited testing. As of April 21, 2020, ICE had tested only 1.32% of the people in its custody: 425 of its 32,309 detainees. Of those tested, 60% had COVID-19.40 As of June 1, 2020, ICE had still only tested 2,781 detainees, of which 1,461 (more than 50%) had COVID-19.
76. Moreover, ICE’s figures do not cover positive cases among non-ICE employees who have close contact with ICE detainees, such as staff at local jails that house ICE detainees.41 Nor do ICE’s figures reflect the number of positive cases
40 Monique Madan, ICE has tested a tiny fraction of its detainees for COVID-19. Most of them are positive, Miami Herald (Apr. 22, 2020), https://www.miamiherald.com/news/local/immigration/article242203726.html.
41 Monique O. Madan, Two Workers at ICE Detention Center in Miami Test Positive for Coronavirus, Miami Herald (Apr. 6, 2020), https://www.miamiherald.com/news/local/immigration/article241791511.html.
37

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3280 Page 40 of 117
among non-immigrant detainees held at local jails that also house ICE detainees. For example, ICE reported that as of April 24, 2020, five detainees and no staff had tested positive at the St. Clair Jail.42 However, declarations submitted in litigation seeking the release of an immigrant at St. Clair who contracted COVID-19 before he could be released showed that as of April 10, 2020, there were also six inmates and three St. Clair staff with confirmed cases. See Albino-Martinez v. Adducci, No. 2:20-cv-10893-SJM-DRM, ECF No. 10, at 23 (E.D. Mich. Apr. 10, 2020). Current numbers of infections for non-immigrant inmates and facility staff at St. Clair are not publicly reported by ICE.
77. Over the past month, more than nine thousand COVID-19 diagnoses have been confirmed at local, state, and federal correctional facilities across the United States. As of May 28, 2020, the Federal Bureau of Prisons (“BOP”) reports 1,747 federal inmates and 187 BOP staff with positive cases and 64 federal inmate deaths.43 Cook County Jail in Illinois has over 500 confirmed cases.44 California’s
42 As of June 1, 2020—the last day for which data is available—there have been 10 confirmed cases of COVID-19 among ICE detainees at St. Clair.
43 Federal Bureau of Prisons COVID-19 Cases, available at https://www.bop.gov/coronavirus/ (last accessed May 28, 2020).
44 Cheryl Corley, The COVID-19 Struggle in Chicago’s Cook County Jail, NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833440047/the-covid-19struggle-in-chicagos-cook-county-jail
38

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3281 Page 41 of 117
Department of Corrections has reported 916 confirmed cases.45 At a single jail in New York City, 253 inmates had already tested positive for coronavirus as of April 5, 2020.46 And, the rate of infection in New York City jails is more than seven times as high as the rate of infection in New York City overall. When the Ohio Department of Corrections performed comprehensive testing, it found that 2,011 out of 2,578 inmates, which is 78% of the inmate population, at one of its facilities have COVID19.47 Statewide, 3,792 inmates tested positive for COVID-19, meaning that incarcerated people made up 20% of the state’s cases as of April 22, 2020.48
78. Similarly, COVID-19 has spread rapidly among those in the custody of MDOC. From March 23 to April 17, the number of confirmed cases of coronavirus in just one jail, Parnall Correctional Facility, multiplied from one inmate to 227 people—163 inmates and 64 staff—meaning that one out of every ten inmates had tested positive for COVID-19. As of April 17, this was higher than the rates of facilities in Chicago and New York.49

45 California Department of Corrections, Population COVID-19 Tracking,

https://www.cdcr.ca.gov/covid19/population-status-tracking/ (last updated Apr.

26, 2020).

46 Josiah Bates, New York’s Rikers Island Jail Sees First Inmate Death from COVID-

19, Time (Apr. 6, 2020), https://time.com/5816332/rikers-island-inmate-dies-

coronavirus/.

47 Id.

48 Id.

49 Jenna Siteman, COVID-19 spreads throughout Parnall Correctional Facility,

Michigan

Daily

(Apr.

20,

2020),

39

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3282 Page 42 of 117
79. MDOC has already placed four prisons on partial lockdown because of the rising number of inmates testing positive for the virus.50 As of June 1, 2020, MDOC reported 3,933 cases and 69 deaths among Michigan inmates, and 146 cases and four deaths among inmates in federal correctional facilities.51 Press reports say that, as of mid-April 2020, at least 169 MDOC staff have contracted COVID-19, and at least 2 MDOC staff have died.52 The problem is almost certainly worse than reported given the dearth of available testing in such facilities.
80. Despite mitigation efforts, the virus continues to infiltrate and spread through correctional facilities. The top doctor at Rikers Island in New York City has lamented how extensive mitigation efforts failed to slow the spread of the disease at the jail.53 He joins a chorus of public health experts in concluding that for such

https://www.michigandaily.com/section/government/parnall-correctional-

facility-hot-spot-covid-19-cases.

50 Tracy Samilton, Four prisons in partial lockdown as COVID-19 cases rise,

Michigan Live (Mar. 30, 2020), https://www.michiganradio.org/post/four-

prisons-partial-lockdown-covid-19-cases-rise.

51 State

of

Michigan.

Coronavirus

Michigan

Data,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html

(last accessed June 1, 2020).

52 John Agar, Coronavirus a ‘death sentence’ in Michigan prisons, inmate says,

Michigan Live (Apr. 14, 2020), https://www.mlive.com/news/grand-

rapids/2020/04/coronavirus-a-death-sentence-in-michigan-prisons-inmate-

says.html

53 Miranda Bryant, Coronavirus spread at Rikers is a “public health disaster,” says

jail’s top doctor, The Guardian (Apr. 1, 2020), https://www.theguardian.com/us-

news/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster.

40

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3283 Page 43 of 117
efforts to be effective, they must be paired with a reduction in the number of people incarcerated.
81. Recognizing the limits of any social distancing or hygiene-based mitigation strategy in a correctional facility, on March 29, Governor Whitmer included in Executive Order 2020-29 intended to protect vulnerable populations in jails, prisons, and juvenile detention facilities from the spread of COVID-19.54 The order recommended that individuals who are older or have underlying health conditions, among others, be considered for early release. Executive Order 2020-29 also restricted the use of out-of-home confinement for juveniles.
C. ICE’s Protocols Are Insufficient To Prevent Widespread Transmission of COVID-19 in Custody 82. On April 10, 2020, in response to the rapid spread of COVID-19
through ICE facilities, ICE released “COVID-19 Pandemic Response
54Michigan Executive Order 2020-29 (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422-,00.html. This order has since been extended multiple times, most recently through June 12, 2020. See Michigan Executive Order 2020-100 (May 22, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530037-,00.html (extending Michigan Executive Order 2020-62, which had extended Michigan Executive Order 2020-29).
41

Case 5:20-cv-10829-JEL-APP ECF No. 97 filed 06/05/20 PageID.3284 Page 44 of 117
Requirements”,55 a set of supplemental guidance for facilities housing immigration detainees.
83. Even if ICE were to fully implement its own COVID-19 guidance at Calhoun, Plaintiffs would remain at significant risk of contracting COVID-19 because these protocols fall well short of what public health experts say is necessary to protect individuals in detention settings.
84. Glaringly, the ICE Guidance does not mandate implementation of many of its own protocols, but instead requires compliance only to the extent “practicable” or “whenever possible.” This malleability allows facilities to claim compliance with the ICE Guidance without actually implementing crucial safeguards.
85. For example, the ICE Guidance does not mandate social distancing but merely recommends it. Indeed, ICE concedes that “strict social distancing may not be possible in congregate settings such as detention facilities.” It also does not address how social distancing can be achieved in dense housing units, where detainees must share sleeping quarters, communal spaces, showers, and bathrooms and are surrounded by dozens of others each day and night, including during mandatory lock-downs.
55 U.S. Immigration & Customs Enforcement, COVID-19 Pandemic Response Requirements 11 (Apr. 10, 2020) (“ICE Guidance”), ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
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86. The ICE Guidance fails entirely to account for presymptomatic or asymptomatic transmission, which especially impacts high-risk detainees. It does not establish special protections for high-risk detainees until they are already symptomatic, by which point it is too late to meaningfully mitigate the risks of transmission to others, serious illness, or death.
87. Nor does the ICE Guidance address the lack of comprehensive COVID19 testing at ICE facilities. There is no guidance for clinical staff on when to test patients for COVID-19, which leaves detained patients at a significant disadvantage. Without any clear guidance for testing, ICE will be unable to identify “confirmed cases,” to timely take necessary precautions to contain the spread of COVID-19.
88. Thus, public health experts like Dr. Homer Venters, an epidemiologist and correctional health expert, who have reviewed ICE’s COVID-19 protocols and guidance, have concluded that they contradict or omit several important CDC guidelines, rendering them “simply insufficient to address the structural aspects of detention facilities that make transmission of COVID-19 so rapid.”
D. Conditions at the Calhoun County Correctional Center Create Heightened Risk of COVID-19 Infection 89. The current conditions at Calhoun, where people live, sleep, bathe, and
eat in close proximity, pose a grave public health risk for the spread of COVID-19. People cannot remain more than six feet apart, scant medical resources are available, and many detainees are at high risk of serious infection.
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90. At Calhoun, Plaintiffs and other detainees are kept together in “pods” containing groups of up to around sixty people, who sleep, eat, bathe, and live in closely confined quarters. Most detainees sleep close together in cells or small communal rooms, in which they cannot avoid being within six feet of each other; more commonly, they are forced to be two or three feet apart, often in bunk beds. Detainees share a limited number of communal showers, bathroom stalls, and telephones, among other resources in the facility.
91. Both food preparation and service are communal at Calhoun; detainees eat all meals together, sitting at shared tables with multiple other people at armslength. Certain detainees are responsible for distributing food trays to the pods.
92. It is impossible for detainees to shelter in place; instead they must interact with strangers who may be carriers for the disease. Detainees and staff regularly come and go. Detainees are transported throughout the facility in close proximity to each other and staff. They regularly interact with individuals from other pods in the hallways, in the recreation area, and even while waiting to get their required medications. Detainees face the further risk of disease transmission through their work, as many work cleaning the kitchen, the laundry area, the bathrooms, and their own pods.
93. The current protective measures implemented at Calhoun simply are not enough to protect Plaintiffs from COVID-19. Calhoun claims it is requiring staff
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to have their temperatures taken when they arrive at work, but this precaution is insufficient to detect a virus like COVID-19 or prevent its spread throughout Calhoun, because infected persons are often asymptomatic but still contagious. Calhoun does not have a program for regular, comprehensive testing of all staff, inmates, and detainees.
94. From March 1, 2020 through May 18, 2020, Defendants tested only eight detainees at Calhoun, an astonishingly low amount, considering Calhoun knowingly housed over 50 detainees with chronic medical conditions during that time period.
95. In an email to the Court on June 1, 2020, Defendants reported that the National Guard had conducted voluntary testing at Calhoun on May 23, 2020, and that 97 detainees and inmates and 16 staff members were tested. Of those, two detainees were confirmed with asymptomatic cases. It remains unclear how many detainees were tested, how many people were exposed to the asymptomatic positive detainees, and whether Defendants have any plans for regular testing. Moreover, as stressed by Dr. Venters, Calhoun appears to be falling short of Michigan Department of Health guidance recommending testing of individuals in “congregate living settings” that exhibit any symptoms of COVID-19, not just a fever.
96. And although ICE claims to be quarantining incoming detainees for 14 days, Defendants’ own records show that they have not followed their own
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procedures. For example, in the past month, at least ten individuals did not remain in quarantine for a full 14 days before being transferred to other areas of the facility, twenty detainees were placed in a detainee pod prior to being quarantined, and 39 detainees were transferred out of quarantine after 14 days despite new arrivals being placed in that same quarantine area during that time.
97. Recent history reflects that Calhoun also lacks the medical infrastructure necessary to address the spread of infectious disease and treatment of people most vulnerable to illness. During the H1N1 influenza epidemic in 2009, for example, jails and prisons were sites of severe outbreaks. Calhoun and Monroe County Jail each experienced mumps outbreaks just last year.56 News reports suggested an ICE detainee spread the mumps outbreak between facilities when the detainee was transferred from Monroe County Jail to Calhoun. Calhoun confirmed at least two cases of the mumps, and news outlets suggested that “several inmates” at both jails were infected.
98. There is no indication that Calhoun is better prepared to address COVID-19, which poses a far greater risk than mumps, nor any suggestion that ICE is implementing procedures in Calhoun to ensure sufficient numbers of qualified staff to treat those who become infected with COVID-19.
56 Mumps confirmed in Calhoun County Jail, WoodTV.com (Apr. 21, 2019), available at: https://www.woodtv.com/news/kzoo-and-bc/mumps-confirmed-incalhoun-county-jail/.
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99. Having reviewed sworn declarations describing the conditions of Plaintiffs’ confinement, correctional health expert and epidemiologist Dr. Venters has concluded that Calhoun fails to meet even the most basic elements of the CDC’s guidelines for management of COVID-19 risks in correctional settings. Dr. Venters identified the following, non-exclusive list of deficiencies: a lack of basic social distancing (including extremely close sleeping quarters and living areas); failure to provide clear guidelines for identifying and protecting detainees who are at a high risk for serious illness or death from COVID-19; limited resources, space, and staffing capacity to respond to an outbreak; failure to provide sanitizing and personal protection equipment; failure to establish standards of use of gloves and masks by security personnel; lack of environmental cleaning in the facility; lack of availability of testing for COVID-19 despite relevant symptoms; and lack of attention to serious history and symptoms of potentially life-threatening medical problems that raises concerns about detainees’ ability to receive access to appropriate health services.
E. Calhoun Must Depopulate to Mitigate the Risks of COVID-19, Beginning with the Most Vulnerable Detainees 100. Leading public health experts have recommended that the Subclass
Named Plaintiffs, and other medically vulnerable detainees, be released from Calhoun and similar correctional facilities.
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101. Dr. Jonathan Louis Golob, an expert in infectious diseases and immunocompromised patients, has declared that social distancing and hygiene “are the only known effective measures for protecting vulnerable communities from COVID-19.” He has further advised that it is reasonable to expect that COVID-19 will “readily spread in detention centers such as prisons and jails[.]” Therefore, he has concluded, vulnerable people in such facilities “are at grave risk of severe illness and death from COVID-19.”
102. Dr. Venters, an epidemiologist and correctional health expert, has enumerated categories of factors that increase an individual’s risk of serious complications from COVID-19. The “At-Risk Population” includes individuals with one or more of the following risk factors: age of 50 or above, pregnancy or recent pregnancy (within last 6 weeks), and serious underlying medical condition including: chronic kidney disease (including receiving dialysis); chronic liver disease (including cirrhosis and chronic hepatitis); endocrine disorders (including diabetes mellitus); compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS); metabolic disorders (including inherited metabolic disorders and mitochondrial disorders); heart disease (including congenital heart disease, congestive heart failure
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and coronary artery disease); lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen; neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury); body mass index (BMI) of 40 or greater; hypertension; smoking or history of smoking; and, any other condition identified by the CDC as putting a person at a higher risk.
103. Dr. Venters explains that age 50 or older is an appropriate threshold for several reasons. First, CDC data reflects that the risk of complications, measured by hospitalization rates, increases for those between ages 45-54 and 55-64. Dr. Venters believes this is especially appropriate for ICE’s consideration of those in its custody, given that in correctional settings the age of 50 or 55 is often used to identify older patients, because of the extremely high level of physical and behavioral health problems among this cohort of people. In addition, Dr. Venters cites recent data that reveals that the critical risk of smoking for serious illness and death from COVID19 infection, as well as data that reveals the rates of smoking to be highest among detained people over 50. For those reasons, it is Dr. Venters’s expert opinion that
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ICE should apply the age of 50 and over to identify detainees who have an increased vulnerability to COVID-19 based on their age.
104. Dr. Venters has called for the immediate release of detainees who possess risk factors, to prevent their serious illness and/or death, and cautions that ICE should not wait until those detainees become symptomatic.
105. According to Dr. Venters, ICE should adhere to the following CDCapproved steps to meet the re-entry needs of people leaving ICE custody. First, any individual set for release must clear a COVID-19 screening process. If they do not, facilities should follow the protocol for a suspected COVID-19 case, including by providing a face mask to the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the individual is released before the recommended medical isolation period is complete, ICE should discuss the individual’s release with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. ICE should also make direct linkages to community resources to ensure proper medial isolation and access to medical care. Finally, before releasing a detainee with COVID-19 symptoms to a community-based facility, such as a homeless shelter, ICE should contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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F. Plaintiffs Are at Grave Risk Under the Current Conditions in Calhoun. 106. All Plaintiffs are at grave risk of contracting COVID-19 as a result of
being detained by ICE at Calhoun, where they are subject to conditions that prevent them from taking basic measures, including social distancing, to protect themselves from this dangerous virus.
107. Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, and William Whernman are people who, as a result of their age and/or underlying medical conditions, are at greatest risk of serious illness or death if infected by COVID-19.
108. Qaid Alhalmi is a 58-year-old Yemeni national who first entered the United States on May 29, 1992, as a nonimmigrant visitor, and then on July 27, 1995, also as a nonimmigrant visitor. He remained in the country ever since. Mr. Alhalmi’s final order of removal to Yemen was issued on August 8, 2002, and the Board of Immigration Appeals dismissed his appeal on December 15, 2003. Mr. Alhalmi has been in ICE custody since on or around September 17, 2019, when he was detained during one of his standard Order of Supervision appointments.
109. Mr. Alhalmi is 58 years old and suffers from hypertension and type 2 diabetes. He must take insulin daily to control his high blood sugar.
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110. Mr. Alhalmi is critically vulnerable to COVID-19 because of his hypertension and diabetes.
111. Mr. Alhalmi was released pursuant to this Court’s preliminary injunction. (Dkt. 68.) He continues to seek a writ of habeas corpus or permanent injunction to prevent his redetention.
112. Waad Barash is a 56-year-old Iraqi national who entered the United States in 1974, when he was ten years old, and has lived in the United States ever since. In 2018, Mr. Barash was placed into removal proceedings. His initial hearing was postponed until July 2020. Mr. Barash has been in ICE custody at Calhoun since January 2020, when he was detained while leaving his home.
113. Mr. Barash tested positive for tuberculosis when he arrived at Calhoun. He has not received any treatment or follow up testing while at Calhoun. He also suffers from high blood pressure, a hernia, and depression. He has not been given any medication to treat his high blood pressure while at Calhoun. Additionally, Mr. Barash has a history of smoking, and smoked a pack of cigarettes per day for ten years prior to his detention.
114. Mr. Barash is critically vulnerable to COVID-19 because of his age and medical conditions.
115. If released, Mr. Barash would be able to self-quarantine at his cousin’s home in Sterling Heights, Michigan. While at home, Mr. Barash would maintain a
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safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions.
116. Leonard Victor Baroi is a 23-year-old Bangladeshi national who entered the United States in 2014 as a tourist, and has remained in the country ever since. He has been in ICE custody since March 3, 2020, when he was detained upon release from 75 days of incarceration for assault and battery. Mr. Baroi was issued a final order of removal, but his removal has not been scheduled, since Bangladesh is not accepting deportees from the United States during the COVID-19 pandemic.
117. Mr. Baroi suffers from hypertension and takes prescribed medication to control the condition. He also suffered pneumonia in 2019. Prior to being detained, Mr. Baroi smoked on a daily basis for two years.
118. Mr. Baroi is critically vulnerable to COVID-19 because of his medical conditions and history of smoking.
119. If released, Mr. Baroi would be able to self-quarantine with his parents (who have asylum in the United States) at their house in Holland, Michigan. While at home, Mr. Baroi would maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions.
120. Tomas Cardona Ramirez is a 38-year-old Guatemalan national, who entered the United States in 2004. He has been detained by ICE in Calhoun since
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February 2020. On April 24, 2020, Mr. Cardona Ramirez was granted voluntary departure.
121. Mr. Cardona Ramirez suffers from type 2 diabetes, and takes insulin and other medication to regulate his blood sugar. He also suffers from hypertension, and has been prescribed medication, including Lipsinopril, an ACE inhibitor, to treat this condition.
122. Mr. Cardona Ramirez is critically vulnerable to COVID-19 because of his diabetes and hypertension.
123. Mr. Cardona Ramirez was released pursuant to this Court’s preliminary injunction. (Dkt. 68.) He continues to seek a writ of habeas corpus or permanent injunction to prevent his redetention.
124. Ruby Briselda Escobar is a 31-year-old El Salvadorian national who entered the United States in 2013. She was detained by ICE at Calhoun from November 18, 2018 to April 6, 2020. Ms. Escobar has a final order of removal that was issued in 2013, when she first attempted entry into the United States. Ms. Escobar’s application for Withholding of Removal and protection under the Convention Against Torture has been denied, but her attorney intends to file a Motion to Reopen Removal Proceedings.
125. Ms. Escobar suffers from several health problems, including a brain aneurysm and heart problems that cause her to experience chest pain, difficulty
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breathing, weakness, and sweating. Ms. Escobar developed her brain aneurysm in 2013, as a result of injuries she sustained while held hostage and tortured by human traffickers. Because of her brain aneurysm, she has headaches, dizziness, nausea, vomiting, double vision, trouble speaking clearly, and forgetfulness. At Calhoun, Ms. Escobar was denied her regular medications and her symptoms became much worse. She also never received any testing for her health issues during the year and a half she was detained at Calhoun, despite reporting her symptoms to medical staff multiple times.
126. Ms. Escobar is critically vulnerable to COVID-19 due to her medical conditions.
127. Ms. Escobar was released voluntarily by ICE under an order of supervision on April 6, 2020, the day after her original petition was filed. (See Dkt. 17, Dkt. 25 at PageID.579.) She is currently residing with her best friend in Lincoln Park, Michigan, where she is able to maintain a safe distance from others and/or quarantine as necessary. She continues to seek a writ of habeas corpus or permanent injunction to prevent her redetention.
128. Lenche Krcoska is a 52-year-old Macedonian citizen who entered the United States around September 2019. She was charged with Misuse of Passport upon entrance and detained at Calhoun for one night before being moved to Sanilac County Jail for several months. Ms. Krcoska pleaded guilty to Misuse of Passport
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on December 12, 2019 and was sentenced to time served of one year of non-reporting supervision. She has no other criminal history. She was transferred back to Calhoun on January 9, 2020, and has been there ever since. Her asylum claim is currently pending.
129. Ms. Krcoska suffers from rheumatoid arthritis and a heart arrhythmia. Her rheumatoid arthritis causes pain, swelling, and deformation of her joints. She has been diagnosed with a severe depressive episode and insomnia.
130. Ms. Krcoska is critically vulnerable to COVID-19 because of her age and medical conditions.
131. If released, Ms. Krcoska would stay with her son, a legal permanent resident, in Illinois. While at home, Ms. Krcoska would maintain a safe distance from others and/or quarantine as necessary.
132. Yohandry Ley Santana is a 33-year-old Cuban national who entered the United States in June 2019 seeking asylum. He was immediately detained by ICE and transferred to Calhoun, where he has remained ever since.
133. Mr. Ley Santana suffers from severe respiratory issues, including asthma, with which he was diagnosed at eight months old. His severe breathing problems have caused him to be hospitalized numerous times throughout his life. On one such occasion, Mr. Ley Santana was intubated due to his respiratory issues. In January 2019, he was hospitalized and diagnosed with severe bronchitis and
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severe allergies to pollen and dust. Mr. Ley Santana was prescribed medication to control his allergies and an Albuterol inhaler for his asthma, but he has not received either in detention. His asthma causes him to experience shortness of breath on a daily basis and as well as regular nighttime awakenings from breathlessness.
134. Mr. Ley Santana is critically vulnerable to COVID-19 because of his respiratory issues.
135. If released, he would stay with his sister, a legal permanent resident, in Tampa Bay, Florida. While at home, Mr. Ley Santana would maintain a safe distance from others and/or quarantine as necessary.
136. Plaintiff Sergio Perez Pavon is a 36-year-old Mexican national who entered the United States in 2011. He has been in ICE custody since February 2020, when he was detained after serving five days in jail for a misdemeanor domestic violence charge.
137. Mr. Perez Pavon suffers from type 2 diabetes, and has taken medication to treat diabetes since 2011. At Calhoun County Jail, he has been treated with a different medication and has become insulin dependent for the first time.
138. Mr. Perez Pavon is critically vulnerable to COVID-19 because of his diabetes.
139. If released, Mr. Perez Pavon would be able to self-quarantine either at home with his family or in his trailer in Harlem, Michigan. Mr. Perez Pavon would
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maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for her medical conditions.
140. Damary Rodriguez Salabarria is a 46-year-old Cuban national who entered the United States on August 1, 2019, and requested asylum at that time. She was immediately detained in McAllen, Texas and on August 10, 2019, was transferred to Calhoun. Ms. Rodriguez Salabarria’s asylum case was denied, and her appeal to the Board of Immigration Appeals was also denied, approximately two weeks ago. She is filing a petition for review to the Sixth Circuit Court of Appeals.
141. Ms. Rodriguez Salabarria suffers from hypertension, chronic gastritis, and a peptic ulcer, as well as gastroesophageal reflux. She takes daily medication for all of these conditions. Prior to entering the United States in August 2019, Ms. Rodriguez Salabarria had twice been admitted to a hospital intensive care unit due to acute pancreatitis. She has also undergone both an appendectomy and cholecystectomy (gallbladder removal), and suffered multiple kidney infections.
142. Ms. Rodriguez Salabarria is critically vulnerable to COVID-19 because of her medical conditions.
143. Ms. Rodriguez Salabarria was released pursuant to this Court’s preliminary injunction. (Dkt. 90.) She continues to seek a writ of habeas corpus or permanent injunction to prevent her redetention.
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144. Emanuel Rosales Borboa is a 35-year-old Mexican national who first entered the United States in 1995, when he was 10 years old, with a B-2 visa. He has continuously resided in the United States since then. Mr. Rosales Borboa was first detained by ICE in April 2017, after he was unable to produce proof of legal U.S. residency to ICE officers at his place of work. He was released on bond in May 2017. On March 7, 2020, Mr. Rosales Borboa was arrested and charged with carrying a concealed weapon. He appeared before a criminal judge who granted him release on bond of $1,000.00, but ICE placed a detention hold and on March 9, 2020, Mr. Rosales Borboa was transferred to Calhoun. Mr. Rosales Borboa is seeking Cancellation of Removal.
145. About ten years ago, Mr. Rosales Borboa was hospitalized for two days at Henry Ford Hospital in Detroit, Michigan, after experiencing shortness of breath, chest pains, and difficulty breathing. His doctors diagnosed him with asthma, and he has been using a prescribed inhaler multiple times a week since then. Mr. Rosales Borboa has also been prescribed Prednisone, an immunosuppressant medication, for his asthma.
146. Mr. Rosales Borboa is critically vulnerable to COVID-19 because of his asthma.
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147. Mr. Rosales Borboa was released pursuant to this Court’s preliminary injunction. (Dkt. 90.) He continues to seek a writ of habeas corpus or permanent injunction to prevent his redetention.
148. Amer Toma is a 55-year-old Iraqi national who first entered the United States about 10 years ago under Refugee status. Mr. Toma was in ICE custody from September 21, 2019 to April 22, 2020. Mr. Toma was arrested for driving with 545 kilograms of marijuana in his car, for which he received two years’ probation and no jail time. Mr. Toma was detained at both Monroe County Jail and Calhoun.
149. Mr. Toma is 55 years old, pre-diabetic, and has prostate cancer, for which he has not received treatment. He also suffers from hypotension, for which he takes medication. Mr. Toma was injured in the Iran-Iraq war, and now has two bullets in his body that have been a source of severe back pain, infection, swelling, and mobility problems. Six or seven years ago, Mr. Toma was hospitalized for two days due to a groin infection caused by one of the bullets. Mr. Toma has used a wheelchair due to the severe pain caused by the bullets. Mr. Toma also has a hernia that has not received treatment. He has been on SSI disability for seven years.
150. Mr. Toma is critically vulnerable to COVID-19 because of his heart condition and susceptibility to infection. Since his release from Calhoun, Mr. Toma has been living at his home in Madison Heights, Michigan, where he has been able
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to practice social distancing and quarantine himself. He wears a mask as much as possible, and constantly washes his hands and uses hand sanitizer.
151. Mr. Toma was released pursuant to this Court’s temporary restraining order, which has since been converted to a preliminary injunction. (Dkt. 29, 41.) He continues to seek a writ of habeas corpus or permanent injunction to prevent his redetention.
152. Plaintiff Johanna Whernman is a 57-year-old Swedish national who entered the United States in November 2019, and she has been detained at Calhoun since February 19, 2020.
153. Ms. Whernman is 57 years old and suffers from chronic bronchitis, asthma, and hypertension. She has been prescribed a Symbicort inhaler for her asthma, but has not received it consistently since being detained. Without her prescription, she does not feel well and has difficulty breathing. Ms. Whernman has also been hospitalized multiple times due to chronic bronchitis. Most recently, she was hospitalized at the Mayo Clinic due to an increased heart rate, which was a side effect from her asthma medication.
154. Ms. Whernman is critically vulnerable to COVID-19 due to her age and medical conditions.
155. If released, Ms. Whernman would reside with her husband in Round Lake Beach, Illinois. She would maintain a safe distance from others and/or
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quarantine as necessary and would also have access to treatment for her medical conditions.
156. Plaintiff William Whernman is a 22-year-old Swedish national who entered the United States in November 2019, and he has been detained at Calhoun since February 19, 2020.
157. Mr. Whernman suffers from asthma, for which he has been prescribed a Symbicort inhaler. He has not consistently received his inhaler since being detained. Mr. Whernman also suffers from anxiety and panic attacks. He also has a BMI of 30.85.
158. Mr. Whernman is critically vulnerable to COVID-19 due to his medical conditions.
159. If released, Mr. Whernman would reside with his stepfather in Round Lake Beach, Illinois. He would maintain a safe distance from others and/or quarantine as necessary and would also have access to treatment for his medical conditions.
160. Plaintiffs Barajas Santoyo, Brito, Castro, Garcia Toledo, Gomez Santiz, Sosa Carillo, and Zhang are also detained at Calhoun. Under the current conditions, they are unable to socially distance or practice other necessary measures to prevent the risk of contracting COVID-19.
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161. These Plaintiffs, while they do not appear to be at the greatest risk of serious illness or death if infected by COVID-19 due to their age or underlying medical conditions,57 are also at high risk under the current conditions at Calhoun.
162. Baldemar Barajas Santoyo is a 47-year-old Mexican national who first entered the United States in December 1991, without inspection. His most recent entry was in May 2000, and he has been in the country ever since. Mr. Barajas Santoyo was detained by ICE in Calhoun from February 12, 2020 until May 20, 2020. He has no criminal history, and is currently in the process of applying for an immigrant visa.
163. As a result of the conditions of confinement at Calhoun, Mr. Barajas Santoyo is at high risk of contracting COVID-19.
164. Sergio Brito is a 37-year-old Mexican national who entered the United States in 2002, without inspection, and has been in the country ever since. He has been detained by ICE in Calhoun since December 9, 2019. Mr. Brito is subject to mandatory detention due to a home invasion conviction, which he is currently working to vacate. If successful, Mr. Brito would be qualified to and will apply for cancellation of removal. Currently, he is appealing to the BIA whether his conviction makes him ineligible for cancellation.
57 The extent of these Plaintiffs’ particular medical vulnerability is unknown, pending receipt of medical records.
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165. As a result of the conditions of confinement at Calhoun, Mr. Brito is at high risk of contracting COVID-19.
166. If released, Mr. Brito will live with his sister in Grand Rapids, Michigan. While living with his sister, Mr. Brito would maintain a safe distance from others and/or quarantine as necessary.
167. Guo Yan Lin Castro is a 45-year-old Chinese national who entered the United States in January 2013, with advance parole. She has been detained by ICE in Calhoun since October 2019, after she was charged with prostitution and paid bail. Ms. Castro’s immigration case is pending.
168. Ms. Castro’s suffers from gastroenteritis and severe depression, for which she takes medication.
169. As a result of the conditions of confinement at Calhoun, Ms. Castro is at high risk of contracting COVID-19.
170. If released, Ms. Castro will stay with her boyfriend, who is a permanent resident, at his home in Brooklyn, New York. While at home, Ms. Castro would maintain a safe distance from others and/or quarantine as necessary.
171. Jose Mauricio Garcia Toledo is a 45-year-old Mexican national who entered the United States about 27 years ago, without inspection, and has remained in the country ever since. He has been detained by ICE in Calhoun since February
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2020. His petition for alien relative is pending with USCIS. He is currently applying for cancellation and has a hearing scheduled for June 15, 2020.
172. As a result of the conditions of confinement at Calhoun, Mr. Garcia Toledo is at high risk of contracting COVID-19.
173. If released, Mr. Garcia Toledo will live with his wife, a lawful permanent resident, and seven-year-old son, a U.S. citizen, at their home in Wyoming, Michigan. While at home, Mr. Garcia Toledo would maintain a safe distance from others and/or quarantine as necessary.
174. Jose Gomez Santiz is a 23-year-old Mexican national who entered the United States in 2009, without inspection. He has been detained by ICE in Calhoun since February 14, 2020. Before his detention in Calhoun, he had been detained at the Gratiot County Jail in Ithaca, Michigan, since January 2020. Mr. Gomez Santiz has requested he be permitted to get married. If so, he would qualify for cancellation. His hearing is scheduled for May 22, 2020.
175. As a result of the conditions of confinement at Calhoun, Mr. Gomez Santiz is at high risk of contracting COVID-19.
176. If released, Mr. Gomez Santiz will stay with his fiancé in Gratiot County, Michigan. While at home, Mr. Gomez Santiz would maintain a safe distance from others and/or quarantine as necessary.
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177. Rudy Sosa Carillo is a 23-year-old Guatemalan national who entered the United States in 2013, without inspection. He has been detained by ICE in Calhoun since February 2020, when ICE took him into custody as he was driving to work. Mr. Sosa Carillo was denied bond on April 2, 2020. He is contesting his removal, and has a June 24, 2020 hearing in his immigration case.
178. As a result of the conditions of confinement at Calhoun, Mr. Sosa Carillo is at high risk of contracting COVID-19.
179. If released, Mr. Sosa Carillo will live in the house he owns in Grand Rapids, Michigan. While at home, Mr. Sosa Carillo would maintain a safe distance from others and/or quarantine as necessary.
180. Min Dan Zhang is a 49-year-old Chinese national who entered the United States in 2013. She has been detained by ICE in Calhoun since August 22, 2019. On April 20, 2020, the Detroit Immigration Court denied Ms. Zhang’s request for bond. The Detroit Immigration Court has also denied Ms. Zhang’s application for political asylum and withholding of removal under the Convention Against Torture. She has appealed this denial, and the appeal is currently pending.
181. As a result of the conditions of confinement at Calhoun, Ms. Zhang is at high risk of contracting COVID-19.
182. If released, Ms. Zhang will live with her ten-year-old son and family in Brooklyn, New York. Her family is able to arrange for her travel from Calhoun.
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While in Brooklyn, Ms. Zhang would maintain a safe distance from others and/or quarantine as necessary.
LEGAL BACKGROUND A. The Constitutional Framework for Evaluating Civil Detention.
183. “In our society, liberty is the norm,” and detention is the “carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Incarceration can be used to punish criminal acts, but may be imposed only after extensive procedural protections designed to ensure a person is not unjustly deprived of her liberty. See Santobello v. New York, 404 U.S. 257, 264 (1971) (Douglas, J., concurring).
184. Civil detainees, unlike people convicted of crimes, “may not be punished.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992); see also Kingsley v. Hendrickson, 135 S.Ct. 2466, 2475 (2015). Accordingly, the constitutional constraints on civil detention are even higher than in the criminal context: “detention violates that [Due Process] Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification . . . outweighs the individual’s constitutionally protected interest in avoiding physical restraint.”
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Zadvydas, 533 U.S. at 690. See also Addington v. Texas, 441 U.S. 418, 425 (1979) (“civil commitment for any purpose constitutes a significant deprivation of liberty”); Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003).
185. The Supreme Court has therefore insisted that civil detention be “narrowly focused on a particularly acute problem in which the government interests are overwhelming.” Foucha, 504 U.S. at 80-81 (quoting Salerno, 481 U.S. at 749– 50). “The bar for involuntarily removing someone from society against her will is high—quite understandably and quite legitimately so,” and thus there is a “heavy presumption” against such “a massive curtailment of liberty.” Howell v. Hodge, 710 F.3d 381, 385, 387 (6th Cir. 2013).
186. To ensure that civil detention does not become impermissible punishment, the Supreme Court has carefully limited its use, insisting that civil detention be used only in “special and narrow nonpunitive circumstances,” Zadvydas, 533 U.S. at 690, and that it must “bear[] [a] reasonable relation to the purpose for which the individual [was] committed.” Id. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Unless civil detention is closely linked to its purpose, the state’s interests cannot “outweigh[] the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690.
187. It is not just the fact of confinement, but “the nature and duration of commitment [that must] bear some reasonable relation to the purpose for which the
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individual is committed.” Jackson, 406 U.S. at 738 (emphasis added). See also Foucha, 504 U.S. at 79 (“[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed”); id. at 88 (opinion of O’Connor, J.) (requiring a “necessary connection between the nature and purposes of confinement”); Seling v. Young, 531 U.S. 250, 265 (2001).
188. Not only must the fact and nature of civil detention be “linked to the stated purposes of the commitment,” Hendricks, 521 U.S. at 363, but the fact and nature of detention may not be excessive in relation to the special, non-punitive reason that justifies detention. Salerno, 481 U.S. at 747. See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (ostensibly civil restrictions constitute punishment if they are “excessive in relation to the alternative [nonpunitive] purpose” used to justify them); Schall v. Martin, 467 U.S. 253, 269 (1984) (same); Kingsley, 135 S. Ct. at 2469 (same).
189. Thus, a civil detainee can establish unconstitutional punishment “by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020).
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B. During the COVID-19 Pandemic, Immigration Detention Without Adequate Safeguards, Especially the Ability to Socially Distance, Is Punitive and Hence Unlawful. 190. Immigration detention—like all civil detention—must be supported by
a “sufficiently strong special justification.” Zadvydas, 533 U.S. at 690. The purpose of immigration detention is “effectuating an alien’s removal,” and immigration detention is only permissible if it “bear[s] a reasonable relation” to that purpose. Id. at 690, 697; see also Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (finding that the goal of immigration detention is “to ensure the ability of the government to make a final deportation”). Thus, when considering the lawfulness of immigration detention, courts must weigh the reasonableness of the government’s asserted interest in using detention to help accomplish removal against the individual’s interest in freedom from such confinement. The COVID-19 pandemic affects both parts of that equation.
191. During this pandemic, an individual’s interest in freedom from confinement is at its zenith. Detention is no longer solely a deprivation of liberty, as severe as that is. Detention in the time of COVID-19 is highly likely to result in contraction of a dangerous illness, because detention centers do not allow for social distancing. Indeed, detention could well result in a deprivation of life itself.
192. Conversely, during this pandemic, the government’s interest in keeping people detained is greatly weakened. First, the government’s ability to remove
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people has decreased dramatically given the breakdown in international travel, the closure of international borders, and the pandemic-induced practical obstacles to obtaining the necessary paperwork to process removals. Second, and perhaps even more importantly, the government has a strong public health interest in limiting detention because the congregate nature of those facilities allows for rapid spread of the disease, endangering those detained, those who work in detention facilities, and those in surrounding communities. Given the limited public health resources— including scarce hospital beds, insufficient ventilators, and overtaxed medical staff—the government’s true interest here is in preventing a wildfire spread of the virus in detention facilities.
193. In sum, due to the COVID-19 pandemic, the fact and nature of Plaintiffs’ detention in Calhoun, where they do not have the ability to engage in social distancing and are at grave risk of severe illness or death, is not reasonably related to, and excessive in relation to, the government’s interest in removal. Such detention therefore imposes punishment, in violation of Plaintiffs’ Due Process rights under the Fifth Amendment.
C. Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody. 194. “[W]hen the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago
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County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As discussed above, because Plaintiffs are civil detainees, their detention is governed by the Fifth Amendment, and may not “amount to punishment of the detainee.” Bell, 441 U.S. at 535, 539.58 See also Banks v. Booth, 1:20-cv-00849-CKK, Dkt. 51 at 10-12 (D.D.C., April 20, 2020) (holding that pretrial detainees held during COVID-19 pandemic did not need to show deliberate indifference, but only that Defendants knew or should have known that the jail conditions posed an excessive risk to their health); Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC, 2020 WL 1952656, at *12 (C.D. Cal. Apr. 23, 2020) (“The Government must not be deliberately indifferent to the potential exposure of civil detainees to a serious, communicable disease on the ground that the complaining detainees show no serious current symptoms, or ignore a condition of confinement that is more than very likely to cause a serious illness”).
58 Plaintiffs’ continued detention also violates the Eighth Amendment’s prohibition of cruel and unusual punishment—a much stricter standard than the Fifth Amendment’s ban on any punishment, which applies here. This is because Defendants have ignored “a condition of confinement that is sure or very likely to cause serious illness” by crowding Plaintiffs into living quarters with others who have “infectious maladies . . . even though the possible infection might not affect all of those exposed.” Helling, 509 U.S. at 32-33. See Bell, 441 U.S. at 539; Thakker, No. 1:20-cv-480, at *22 n.15 (ordering immediate release of immigration detainees due to COVID-19 under the Fifth Amendment and, citing Helling, finding that plaintiffs had also met the “more exacting Eighth Amendment standard”).
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195. Defendants’ continued detention of Plaintiffs and members of the proposed class under current conditions and population levels puts them at a high risk of exposure to a highly contagious disease resulting in serious illness, severe harm, or death, in violation of their due process rights under the Fifth Amendment.
D. Plaintiffs Held in Post-Order Custody Must Be Released Because Their Removal Is Not Significantly Likely in the Reasonably Foreseeable Future Due to the Impact that the COVID-19 Crisis Has Had on International Travel and Removals. 196. Mr. Alhalmi, who was ordered removed to Yemen, has been detained
since September 2019, approximately eight months. Mr. Baroi, who was ordered removed to Bangladesh, has been detained since March 2020, approximately three months. Ms. Escobar, who was ordered removed to El Salvador, has been detained since November 2018, approximately seventeen months. Mr. Ley Santana, who was ordered removed to Cuba, has been detained since June 2019, approximately one year. Ms. Rodriguez Salabarria, whose order to be removed to Cuba became final after the BIA denied her appeal, has been detained since August 2019, more than eight months. Mr. Toma, who was ordered removed to Iraq, has been detained since September 2019, more than six months. As a result of the COVID-19 crisis, Mr. Alhalmi, Mr. Baroi, Ms. Escobar, Mr. Ley Santana, Ms. Rodriguez Salabarria, and Mr. Toma are not significantly likely to be removed in the reasonably foreseeable future, given the difficulty of accomplishing removals to Yemen, Bangladesh, El
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Salvador, Cuba and Iraq. Their detention is therefore barred under Zadvydas v. Davis, 533 U.S. 678 (2001).
197. Mr. Alhalmi, Mr. Baroi, Ms. Escobar, Mr. Ley Santana, Ms. Rodriguez Salabarria, and Mr. Toma have final orders of removal, and are therefore detained under 8 U.S.C. § 1231, the statute governing post-order detention. 8 U.S.C. § 1231(a)(2) authorizes a 90-day period of mandatory post-final-order detention during which time ICE is supposed to effectuate removal, also known as “the removal period,” § 1231(a)(1)(A).
198. Individuals whom the government is unable to remove during the 90day removal period should be released under conditions of supervision. 8 U.S.C. § 1231(a)(3) (“If the alien . . . is not removed within the removal period, the alien, pending removal, shall be subject to supervision.”). These conditions include periodic reporting and other “reasonable written restrictions on the alien’s conduct.” Id.
199. Mr. Alhalmi, Mr. Baroi, Ms. Escobar, Mr. Ley Santana, Ms. Rodriguez Salabarria, and Mr. Toma have been or will, by the time their claims are adjudicated, be detained far longer than the 90-day removal period.
200. In certain circumstances, the government “may” continue to detain certain individuals “beyond the removal period,” including when individuals have been ordered removed on criminal grounds or where the government deems them to
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be a risk to the community or unlikely to comply with a removal order. 8 U.S.C. § 1231(a)(6) (emphasis added).
201. ICE continued the detention of Mr. Alhalmi, Mr. Baroi, Ms. Escobar, Mr. Ley Santana, Ms. Rodriguez Salabarria, and Mr. Toma beyond 90 days. Mr. Alhalmi was charged with selling pornography to a 17-year-old over ten years ago. He successfully completed a DA diversion program and has not reoffended. Mr. Baroi was charged with assault and battery, for which he pleaded no contest, was sentenced to 90 days of incarceration, and ultimately served 75 days. Mr. Toma has a conviction for delivery/manufacture of marijuana, for which he was sentenced to two years’ probation. There is no hearing process by which individuals can appeal the government’s unilateral determination that they should be detained past the 90day removal period.
202. In Zadvydas, the Supreme Court held that 8 U.S.C. § 1231(a)(6) authorizes continued detention beyond the removal period only insofar as removal is “reasonably foreseeable.” 533 U.S. at 699. That is because, to satisfy due process, detention must “bear a reasonable relation to the purpose for which the individual [was] committed.” Id. at 690 (citations omitted). Because the principal purpose of the post-final-order detention statute is to effectuate removal, if removal cannot be effectuated, detention bears no reasonable relation to its purpose. Id. at 697. Thus, in order to avoid the serious constitutional problem that would be created if the
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statute authorized detention in such circumstances, the Supreme Court construed Section 1231(a)(6) as authorizing post-final-order detention only for a “period reasonably necessary to secure removal,” a period that the Court determined to be presumptively six months. Id. at 699-701. After this six-month period, if a detainee provides “good reason” to believe that his or her removal is not significantly likely in the reasonably foreseeable future, “the Government must respond with evidence sufficient to rebut that showing.” Id. at 701. If the government cannot do so, the individual must be released.
203. Mr. Alhalmi, Mr. Baroi, Ms. Escobar, Mr. Ley Santana, Ms. Rodriguez Salabarria, and Mr. Toma have, or will have by the time this claim is adjudicated, been detained longer than six months. The COVID-19 crisis provides good reason to believe their removal is not significantly likely in the reasonably foreseeable future. Therefore, they must be released unless Defendants provide evidence that rebuts Plaintiffs’ showing that removal is unlikely in the reasonably foreseeable future.
204. Even under normal circumstances before the COVID-19 pandemic, securing the necessary documents for deportees and coordinating their travel often was a time-consuming, complicated, and costly process.
205. That process has now ground to a halt. The COVID-19 crisis has resulted in an unprecedented shutdown of international travel, a closure of
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international borders, the shuttering of embassy and consular services that are an integral part of removal processing, and a drastic curtailment of immigration case processing.
206. International travel has come to a virtual standstill. Sixty-four global airlines have completely suspended operations, and U.S. airlines have greatly reduced operations.59 Many airlines are now operating cargo-only flights and U.S. airports have closed terminals, gates and runways.60 Delta will cut its international flights by 80%.61 American Airlines plans to cut its international flights by 90% through April and May.62 It is unclear when regular commercial air travel will

59 Thomas Pallini, 64 Global Airlines Have Completely Stopped Flying Scheduled

Flights Due to Travel Bans, Airspace Closures, and Low Demand for Travel – See

the Full List, Bus. Insider

(Apr. 1, 2020),

https://www.businessinsider.com/coronavirus-global-airlines-stopping-flights-

suspending-operations-2020-3.

60 James Asquith, Commercial Airlines Are Now Operating Cargo-Only Flights,

Forbes

(Mar.

28,

2020),

https://www.forbes.com/sites/jamesasquith/2020/03/28/commercial-airlines-are-

now-operating-cargo-only-flights/#17b4385c6f0e; Nicquel Terry Ellis, Chicago,

Los Angeles and more airports shutter gates, runways as coronavirus halts travel,

USA

Today

(Apr.

3,

2020),

https://www.usatoday.com/story/travel/2020/04/03/u-s-airports-reduce-

operations-travel-declines-due-coronavirus/2939126001/

61 Kelly Yamanouchi, Delta Says it Still Flies to All Points in its Domestic Network,

Atlanta

Journal-Constitution

(Apr.

3,

2020),

https://www.ajc.com/blog/airport/delta-says-still-flies-all-airports-its-domestic-

network/Rym2MyGFFHdanXuKP7VPpK/.

62 Keith Griffin, American Airlines Cuts International Flights by 90% Through May

– but Vows NOT to Halt Domestic Service During the Coronavirus Crisis, Daily

Mail

(Apr. 3, 2020), https://www.dailymail.co.uk/news/article-

8186105/American-Airlines-cuts-international-flights-90-May.html.

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resume, and, even when it does, it will likely take a great deal of time before regular routes are reestablished to many countries, meaning that it is likely to remain extremely difficult to effectuate removals.
207. While ICE uses charter flights to effectuate removals to some countries, for many countries ICE relies on commercial airlines. Removals are not significantly likely in the reasonably foreseeable future to countries where ICE cannot currently operate charter flights and where there is no regular commercial air travel.
208. In addition, many countries have closed their borders as a result of COVID-19. Both commercial and charter flights are affected. It is unclear how long it will be until countries reopen their borders, or, when they do, whether countries will agree to accept people deported from the United States, particularly those coming from Michigan, one of the areas in the United States hardest hit by COVID19. It is also unclear what requirements countries will impose in order to accept individuals coming from abroad. For example, even if a country opens up its borders and allows entry conditioned on a period of quarantine, it is unclear that deportees, who are unlikely to have the resources to isolate in a hotel for several weeks, will be admitted.
209. The shuttering of consular and embassy services makes removals more difficult still. Even absent the COVID-19 crisis, individuals set to be deported must
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obtain travel documents, usually a passport. It was already quite difficult for ICE to obtain passports or other travel documents for nationals of certain countries. Given the global scale of the COVID-19 crisis, foreign governments are fully occupied with protecting their countries from the pandemic. As in the United States, government employees in other countries responsible for processing passport and document requests are likely to be working from home, assuming that they have internet access and computers, which will often not be the case. Similarly, foreign consular and embassy staff in the United States face challenging working conditions, if they are working at all. As a result, it is unlikely that ICE will be able to timely obtain passports or travel documents for plaintiffs who do not already have them.
210. The slowing and shutdown of consular and embassy services will also affect removals to countries where transit visas through third countries are necessary in order to remove a person because there are no direct flights to the country of deportation. Because many deportees are escorted by ICE officers on such flights, in order to travel through the transit country or countries, ICE needs to procure transit visas not just for the deportee, but also for the ICE escorts.
211. Likewise, immigration case processing in the United States has been severely curtailed as a result of the pandemic. As of 2020, there were over 1.1 million cases pending in the immigration court system, and the average wait for a
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disposition in Michigan is almost two years.63 While the Detroit Immigration Court remains open for detainee hearings, detainees are being encouraged to waive their right to in-person appearances in favor of telephonic appearances, and to work with the Department of Justice to take certain facts out of controversy.64 Thus, those detainees who wish to press their right to fair procedures will see their cases delayed in a system that is heavily backlogged under the best of circumstances.
212. As the pandemic continues to spread, it is unclear how long it will take for immigration courts or the Board of Immigration Appeals to hear cases from individuals who are seeking further immigration relief or who are detained due to a government appeal.
213. Defendants seek to deport Mr. Alhalmi to Yemen. Absent relief from this Court requiring Mr. Alhalmi’s release, which was preliminarily entered but has not been permanently granted, Defendants intend to keep Mr. Alhalmi detained.
214. Even before the COVID-19 crisis, it was unlikely that the Government would deport Mr. Alhalmi to Yemen, a war-torn country facing a humanitarian
63 See Immigration Court Backlog Tool, TRAC Reports, Inc., https://trac.syr.edu/phptools/immigration/court_backlog/.
64 Mark Jebson, U.S. Immigration Judge, Standing Order: Telephonic Appearance due to COVID-19 in detained cases before Judge Mark Jebson in the Detroit Immigration Court (Mar. 26, 2020). Regarding the right to an in-person hearing generally, Immigration Court Practice Manual, Department of Justice, Chapter 4 (2008) (“[E]videntiary hearings on the merits may only be conducted by telephone conference if the respondent consents after being notified of the right to proceed in person or through video conference.”).
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crisis. In the past four years, over 3 million people have been displaced and over
15,000 people were killed.65 Much of the country, including the capital city, Sana’a,
is currently controlled by the Houthis, an armed militia group that has been accused
of numerous human rights violations, including recruiting and using child soldiers.66
215. The violence has not stopped either since the COVID-19 outbreak;
since January 2020, civilian casualties have risen every month.67 In a statement
released by Secretary of State, Michael Pompeo, he said that the U.S. Government
is “alarmed by renewed violence” in Yemen even after de-escalation efforts were
implemented.68 Within the last month, the Saudi-led coalition has continued to carry
out air strikes, killing over 30 people on March 30, 2020 alone.69
216. Since the COVID-19 outbreak, the conditions in Yemen have only
grown more dire. Due to the conflict, there are few medical resources available in
65 The United Nations identified Yemen as the worst humanitarian crisis in the world in 2019. Humanitarian crisis in Yemen remains the worst in the world, warns UN, UN News (Feb. 14, 2019), https://news.un.org/en/story/2019/02/1032811.
66 Q & A on The Conflict in Yemen and International Law, Human Rights Watch (April 6, 2015), https://www.hrw.org/news/2015/04/06/q-conflict-yemen-andinternational-law.
67 Yemen can’t survive war on two fronts, top UN envoy tells Security Council, as coronavirus outbreak looms, UN News (Apr. 16, 2020), https://news.un.org/en/story/2020/04/1061942.
68 Press Release, Dep’t of State, Escalation of Violence in Yemen (Jan. 28, 2020). 69 Aziz El Aziz El Yaakoubi and Lisa Barrington, Air strikes hit Houthi-held Yemeni
capital Sanaa: witnesses, Reuters (March 30, 2020), https://www.reuters.com/article/us-yemen-security/air-strikes-hit-houthi-heldyemeni-capital-sanaa-witnesses-idUSKBN21H1GY
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Yemen. Over half of the hospitals and clinics have closed or been destroyed. Around 80% of the population depends on foreign aid, which has been cut due to funding crises and accusations that aid was being diverted by Houthi authorities. There are also severe water and food shortages throughout the country and a lack of sanitation that led to an acute cholera outbreak.70
217. The conflict poses additional logistical problems, including that the U.S. Embassy in Sana’a suspended its operations in 2015, and that the U.S. Federal Aviation Administration prohibits flying in certain regions due to terrorist and militant activity. Additionally, the U.S. State Department travel advisory warns that there is a high-risk of kidnapping, especially of dual Yemeni-American citizens or individuals coming from the west, and attacks on public sites and transportation hubs.71 The shutdown of international air travel has made it extremely difficult for ICE to remove Mr. Alhalmi to Yemen.
218. Given these facts, Mr. Alhalmi has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future.
70 Bethan McKernan, Health workers' worst fears confirmed as Covid-19 reaches war-torn Yemen, The Guardian (Apr. 10, 2020), https://www.theguardian.com/world/2020/apr/10/yemen-confirms-firstcoronavirus-case-war-torn-country
71 U.S. Dep't of State, Yemen Travel Advisory (Nov. 26, 2019), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/yementravel-advisory.html#ExternalPopup.
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Therefore, he must be released unless Defendants provide evidence that rebuts Plaintiffs’ showing that removal is unlikely in the reasonably foreseeable future.
219. Defendants seek to deport Mr. Baroi to Bangladesh. There are no direct flights operating from the United States to Bangladesh, and Bangladesh has banned international commercial flights from Bahrain, Bhutan, Hong Kong, India, Kuwait, Malaysia, Maldives, Nepal, Oman, Qatar, Saudi Arabia, Sri Lanka, Singapore, Thailand, Turkey, UAE and UK due to COVID-19.72 Many countries through which flights to Bangladesh connect, such as Turkey73 and Saudi Arabia74, are not accepting international flights during the pandemic.
220. Given these facts, Mr. Baroi has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future. He must therefore be released unless Defendants can rebut that showing.
221. Defendants seek to deport Ms. Escobar to El Salvador. Absent relief from this Court requiring Ms. Briselda Escobar’s release, which was preliminarily
72 U.S. Embassy in Bangladesh, COVID-19 Information (last accessed May 31, 2020), https://bd.usembassy.gov/covid-19-information/.
73 Non-Turkish citizens who have been in the United States or a host of other countries in the past 14 days are not allowed to enter Turkey. U.S. Embassy in Turkey, COVID-19 Information (last accessed May 31, 2020), https://tr.usembassy.gov/covid-19-information-2/.
74 U.S Embassy & Consulate in Saudi Arabia, COVID-19 Information (last accessed May 31, 2020), https://sa.usembassy.gov/u-s-citizen-services/covid-19information/ (“All international passenger traffic, whether by air, land, or sea, has been suspended.”).
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entered but has not been permanently granted, Defendants intend to keep Ms. Briselda Escobar detained.
222. El Salvador has banned entry to all foreigners, excluding accredited diplomats and legal residents, and those allowed to enter are subject to a 30-day quarantine.75 El Salvador also shut down its airport on March 16, 2020 to all commercial flights, and it is unclear when the airport will reopen.
223. Ms. Escobar’s immigration attorney is not certain whether Ms. Escobar has a passport or other immigration documents that would permit her entry into El Salvador, or whether those still must be obtained, which would be very difficult under present circumstances.
224. Given these facts, Ms. Escobar has provided good reason to believe that her removal is not significantly likely in the reasonably foreseeable future. She must therefore be released unless Defendants can rebut that showing.
225. Defendants seek to deport Mr. Ley Santana and Ms. Rodriguez Salabarria to Cuba. Absent relief from this Court requiring Ms. Rodriguez Salabarria’s release, which was preliminarily entered but has not been permanently granted, Defendants intend to keep Ms. Rodriguez Salabarria detained.
75 See Coronavirus: Travel Restrictions, border shutdowns by country, AL JAZEERA (Apr. 4, 2020), https://www.aljazeera.com/news/2020/03/coronavirus-travelrestrictions-border-shutdowns-country-200318091505922.html; U.S. Embassy in El Salvador, Current Information for U.S. Citizens in El Salvador.
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226. Before the COVID-19 crisis, deportations to Cuba were rare. Before 2017, the Special Parole Policy (also known as the “dry foot, wet foot” policy) only permitted the repatriation of individuals that were intercepted at sea. In 2017, the U.S. and Cuba entered into an agreement that permitted deportations to Cuba. The Cuban government now has discretion to decide, on a “case-by-case basis” whether to accept deportations.76 If the Cuban government does not accept the individual within 90 days, the individual can request asylum under the Cuban Adjustment Act. In the past three years, Cuba has not accepted all deportations, especially of individuals who are elderly, ill or whom the government views as a tax burden.77 Out of the more than 39,000 Cubans with deportation orders, only about 1,300, or around 3%, have been deported.78

76 See U.S. Department of Homeland Security, Fact Sheet (Jan. 12, 2017),

https://www.dhs.gov/sites/default/files/publications/DHS%20Fact%20Sheet%20

FINAL.pdf; U.S. DEP’T OF HOMELAND SEC., Joint Statement (Jan. 12, 2017),

https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FIN

AL%20-%20US%20alt.pdf

77 See Monique O. Madan, Cuban deportations have more than doubled in the past

year, new data shows, Miami Herald (Dec. 11, 2019),

https://www.miamiherald.com/news/local/immigration/article238280593.html;

Maria Alesia Sosa, More than 37,000 Cubans face deportation, but they don't

seem too worried, Miami Herald (Dec. 29, 2017),

https://www.univision.com/local/miami-wltv/more-than-37-000-cubans-face-

deportation-but-they-dont-seem-too-worried

78 Associated Press, More Cubans are being deported under the Trump

administration,

NBC

News

(Oct.

11,

2019),

https://www.nbcnews.com/news/latino/more-cubans-are-being-deported-under-

trump-administration-n1065041

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227. The COVID-19 crisis only further complicates deportations to Cuba. In addition to the challenges of getting the Cuban government to decide to admit deportees during the crisis, the borders are closed to all international travel. On March 20, 2020, Cuba closed its borders to non-Cuban citizens, and on April 2, 2020, the Cuban government suspended all international flights. The U.S. Embassy in Cuba released a statement that there are no additional repatriation charter flights for U.S. citizens and told individuals who did not get a seat on a prior charter flights to plan to “remain in Cuba until the airport re-opens and airlines can return.”79 Given these facts, Mr. Ley Santana and Ms. Rodriguez Salabarria have provided good reason to believe that their removal is not significantly likely in the reasonably foreseeable future. They must therefore be released unless Respondents can rebut the showing.
228. Defendants seek to deport Mr. Toma to Iraq. On February 25, 2020, Mr. Toma won his immigration case, and was granted Withholding of Removal under the Convention Against Torture from the Detroit Immigration Court. However, the government appealed, and kept him detained during the appeal. It is unclear how long it will take for the government’s appeal to be decided given the impact of the COVID-19 crisis on the operations of the Board of Immigration
79 U.S. Embassy in Cuba, Health Alert – U.S. Embassy, Havana, Cuba (Apr. 22, 2020), https://cu.usembassy.gov/covid-19-information/
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Appeals. Absent relief from this Court requiring Mr. Toma’s release, which was preliminarily entered but has not been permanently granted, Defendants intend to keep Mr. Toma detained for the duration of the government’s appeal of his immigration case.
229. Even before the COVID-19 crisis, this Court found, based on extensive evidence obtained in class action litigation about the difficulty of repatriating nationals of Iraq, that there is no significant likelihood that Iraqi nationals will be removed to Iraq in the reasonably foreseeable future. See Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2019), rev’d on other grounds, 946 F.3d 875 (6th Cir. 2020). Although Mr. Toma is not a class member in Hamama due to the date of his removal order, the Hamama court’s factual findings about the obstacles to removals to Iraq are directly relevant here.
230. Because of the COVID-19 crisis, the obstacles to Mr. Toma’s removal are even greater than at the time of the Hamama decision. Iraq will not accept repatriations or issue travel documents without first conducting an in-person consular interview. Mr. Toma has not had a consular interview. Given the COVID19 crisis, it is unclear whether or when Iraqi consular officials will conduct any further consular interviews.
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231. Iraq has suspended all flights to and from Iraq, and has also banned travel between Iraqi provinces.80 The WHO reports that, as of April 1, 2020 there were 697 total cases of COVID-19 in Iraq, and that it expects the reported numbers to “spike in the coming two weeks.”81
232. Given these facts, Mr. Toma has provided good reason to believe that his removal is not significantly likely in the reasonably foreseeable future. He must therefore be released unless Respondents can rebut the showing.
E. ICE Has the Authority to Release Detained People in Its Custody 233. It is well within ICE’s authority to comply with constitutional
requirements by releasing people who are vulnerable to severe illness or death if they contract COVID-19. See, e.g., 8 C.F.R. § 212.5(b)(1). ICE not only has the authority to exercise its discretion to release individuals from custody, but has routinely done so, particularly where individuals are medically frail or likely to suffer medical complications if they remain detained.
234. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving
80 COVID-19 Information, U.S. Embassy & Consulates in Iraq (Apr. 1, 2020), https://iq.usembassy.gov/covid-19-information/.
81 The Fight to Contain COVID-19 in Iraq, World Health Organization, http://www.emro.who.int/irq/iraq-news/the-fight-to-contain-covid-19-iniraq.html.
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severe medical concerns and other humanitarian equities militating against detention.
235. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A governmentcontracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings.82
236. ICE’s exercise of discretion applies regardless of the statutory basis for a noncitizen’s detention.
237. Here, the Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that ICE release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has a longstanding practice of releasing immigrants on medical grounds indicates that the remedy Plaintiffs request is neither unprecedented nor unmanageable for the agency.
82 U.S. Gov’t Accountability Off., GAO-15-26, Alternative to Detention: Improved Data and Collection and Analyses Needed to Better Assess Program Effectiveness, at 30 (2014).
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F. This Court Has the Authority to Order Release To Ensure the Health and Safety of Plaintiffs, and Release is the Appropriate and Necessary Relief. 238. The release of a sufficient number of Calhoun detainees to permit social
distancing and hygiene measures for those who remain in detention is the only means to ensure compliance with the Constitution’s prohibition against punitive or unreasonable civil detention.
239. Where the government fails to meet its obligations to provide safe conditions for those in its custody, courts have a responsibility to remedy the resulting constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Id.
240. Courts have regularly exercised this authority to remedy constitutional violations caused by overcrowding. “The scope of a district court’s equitable powers” in this regard “is broad, for breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (citation omitted). Thus, even where “[t]he inquiry involves uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels,” federal courts “have substantial flexibility [in] making these judgments” and crafting an appropriate remedy. Plata, 563 U.S. at 538.
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241. Federal courts have repeatedly ordered the release of detained persons when necessary to remedy unconstitutional conditions caused by overcrowding. See, e.g., Plata, 563 U.S. at 541–45; Duran v. Elrod, 713 F.2d 292, 297–98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224–25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions, and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (citation omitted) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”); see also Unknown Parties v. Nielsen, CV-15-00250-TUC-DCB, 2020 WL 813774, at *1 (D. Ariz. Feb. 19, 2020) (ordering that DHS release from custody detainees to whom it did not provide a bed, shower, nutritious food, and screening by a medical professional within 48 hours of booking).
242. When conditions of confinement in an immigration detention facility lead to uniformly unsafe conditions that rise to the level of a constitutional violation,
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levels of detention must be reduced unless and until conditions can be brought in line with constitutional standards. As the constitutional principles and public health requirements mandate, releasing detainees from Calhoun is the only viable mechanism to ensure their safety from the threat to their health that COVID-19 poses.
243. Moreover, for those with medical vulnerabilities, such as Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman and the subclass they seek to represent, release is the only relief capable of remedying the constitutional violation. (See Op. & Order 39–40, Dkt. 22.) Because of the underlying health conditions and/or age of these Plaintiffs and the subclass, which make them especially vulnerable to infection from COVID-19, the condition of their confinement is not “reasonably related to a legitimate governmental objective”; instead it is “arbitrary or purposeless[.]” See Bell, 441 U.S. at 539. See also J.H. v. Williamson Cty., Tennessee, 951 F.3d 709, 717 (6th Cir. 2020) (applying Bell test to pre-trial detainee’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 571–72 (6th Cir. 1983) (same).
244. To vindicate detainees’ due process rights in the face of the COVID-19 pandemic, federal and state courts across the country have ordered the release of detained individuals, vulnerable and otherwise. See supra ¶¶ 70–71.
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245. Additionally, social distancing and sanitation measures compliant with public health requirements must be fully implemented to protect any individuals that remain in detention. Defendants’ actions make such protective measures exceedingly difficult, if not impossible, in the environment of an immigration detention center, where detainees share toilets, sinks, and showers, eat in communal spaces, and are in close contact with the many other detainees and officers around them.
CLASS ACTION ALLEGATIONS A. Overview of Proposed Class and Subclass Definitions and Claims 246. This case is ideally suited to class treatment. Unsurprisingly, given the grave danger that COVID-19 poses to people in detention, multiple individual actions have been filed in this district. Unrepresented individuals, however, continue to languish in these facilities, fearing for their lives but lacking the wherewithal to sue ICE for their release. Moreover, due to the pandemic and the attendant restrictions within detention facilities including Calhoun, it is extremely difficult for detained people to communicate with the outside world, making legal representation very challenging. 247. The resource-intensive process of litigating multiple individual cases is not ideally suited to the urgent situation at hand, where due process requires swift adjudication. Consolidating discovery and decision-making about the Calhoun
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facility, which houses more ICE detainees than the other three Michigan facilities put together, is an efficient way to resolve the legal claims of the approximately 144 ICE detainees held there.
248. Accordingly, Plaintiffs bring this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(c)(4) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals.
249. Plaintiffs Alhalmi, Barash, Baroi, Brito, Cardona Ramirez, Castro, Garcia Toledo, Gomez Santiz, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Sosa Carillo, Toma, Johanna Whernman, William Whernman, and Zhang seek to represent a class of all noncitizens who are detained in ICE custody at Calhoun. The class seeks habeas, injunctive and declaratory relief on Count I.
250. Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, and William Whernman seek to represent a subclass of medically vulnerable individuals. The subclass seeks habeas and declaratory relief on Count II. The proposed subclass is defined as:
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All noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.83
251. These risk factors have been identified by the CDC and experts
including Dr. Venters, Dr. Golob, and Dr. Robert Greifinger based on emerging data
and studies.
252. In accord with the Sixth Circuit’s ruling in Hamama, the class and
subclass do not seek class-wide injunctive relief that would “enjoin or restrain”
specified provisions of the Immigration and Nationality Act (“INA”), as barred by 8
U.S.C. § 1252(f)(1). See Hamama I, 912 F.3d at 880; Hamama II, 946 F.3d at 876.
To the extent that Plaintiffs seek class-wide injunctive relief, that relief is tailored so
83 These risk factors are: age of 50 or above, pregnancy or recent pregnancy (within last 6 weeks), and serious underlying medical condition including: chronic kidney disease (including receiving dialysis); chronic liver disease (including cirrhosis and chronic hepatitis); endocrine disorders (including diabetes mellitus); compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS); metabolic disorders (including inherited metabolic disorders and mitochondrial disorders); heart disease (including congenital heart disease, congestive heart failure and coronary artery disease); lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen; neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury); body mass index (BMI) of 40 or greater; hypertension; smoking or history of smoking; and, any other condition identified by the CDC as putting a person at a higher risk.
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as not to enjoin or restrain Sections 1226 and 1231 of the INA. Plaintiffs seek classwide declaratory and habeas relief, to which they are entitled. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (Alito, J.) (plurality op.) (whether the district court had jurisdiction to enter a class-wide injunction “is irrelevant because the District Court had jurisdiction to entertain the plaintiffs’ request for declaratory relief”);84 Hamama I, 912 F.3d at 879 (citing Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (Thomas, J., concurring in part and concurring in judgment)) (“there is nothing barring a class from seeking a traditional writ of habeas corpus (which is distinct from injunctive relief[)]”).
84 See also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011) (“[V]iewing [§ 1252(f)(1)] in context and then taking into consideration the heading of the provision [‘limits on injunctive relief’], it is apparent that the jurisdictional limitations in § 1252(f)(1) do not encompass declaratory relief.”); Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) (“It is simply not the case that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class.”); Caliste v. Cantrell, 937 F.3d 525, 532 (5th Cir. 2019) (ordering class-wide declaratory relief despite statutory bar on injunctive relief); Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *7 (D. Mass. Oct. 23, 2018) (holding that 8 U.S.C. § 1252(f)(1) does not bar classwide declaratory relief; the section heading is “Limit on injunctive relief” and a neighboring section specifically precludes both declaratory and injunctive relief, which § 1252(f)(1) does not); Vazquez Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950, at *9 (S.D.N.Y. Sept. 30, 2019); O.A. v. Trump, 404 F. Supp. 3d 109, 159 (D.D.C. 2019).
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B. The Proposed Class and Subclass Satisfy the Requirements of Rule 23(a) 253. The proposed class and subclass satisfy the requirements of Federal
Rule of Civil Procedure 23(a)(1) because they are so numerous that joinder of all members is impracticable. As of May 4, 2020, there were 144 immigration detainees at Calhoun. Upon information and belief, a significant percentage of the class is medically vulnerable as that term is defined for purposes of the subclass definition. In discovery, Defendants produced a list of 51 detainees whom, as of May 11, 2020, Defendants had identified as high-risk pursuant to ICE’s guidelines, who fall within the class identified in Fraihat v. U.S. Immigration & Customs Enforcement, No. 191546, --- F. Supp. 3d ----, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020), and who require chronic medical care by Calhoun. This list is underinclusive, as it excludes individuals with risk factors identified in the subclass definition.
254. Joinder is also impracticable because class members are detained and largely unrepresented. Due to the pandemic, their ability to communicate with the outside world, including potential counsel, is limited. Joinder is also impracticable because many in the proposed class and subclass are pro se, indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system.
255. The proposed class and subclass meet the commonality requirements of Federal Rule of Civil Procedure 23(a)(2) because there are common questions of law and fact affecting members of the proposed class and subclass. Common
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questions of law for the class include whether detention at Calhoun violates their due process rights, and whether Defendants must modify the conditions of confinement—or, failing that, release a critical mass of detainees—such that social distancing will be possible and all those held in the facility will not face a constitutionally violative substantial risk of serious harm. Common questions of law for the subclass include whether the detention at Calhoun for individuals at higher risk of suffering severe illness or death violates their due process rights. Common questions of fact include whether and how social distancing can be accomplished in Calhoun, given facility design, what measures are being taken to protect detainees from COVID-19 and whether those measures are sufficient, and what treatment is available at Calhoun to detainees who contract COVID-19.
256. The proposed class meets the typicality requirements of Federal Rule of Civil Procedure 23(a)(3) because Plaintiffs’ claims are typical of the claims of the class, and the claims of Plaintiffs Alhalmi, Barash, Baroi, Cardona Ramirez, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, and William Whernman, and are typical of the claims of the subclass. Each named putative class and subclass representative is being harmed or threatened with harm by the same course of conduct as the rest of the class, namely ICE’s decision to continue to detain them in a setting that makes social distancing impossible. And each seeks similar relief as the rest of the class and subclass.
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257. The proposed class and subclass meet the adequacy requirements of Federal Rule of Civil Procedure 23(a)(4). Named Plaintiffs have the requisite personal interest in the outcome of this action and have no interests adverse to the interests of the proposed class and subclass.
258. Additionally, the proposed class is represented by pro bono counsel from the American Civil Liberties Union Fund of Michigan, the American Civil Liberties Union Foundation’s Immigrants’ Rights Project and National Prison Project, and Paul, Weiss, Rifkind, Wharton & Garrison LLP. Plaintiffs’ counsel have extensive experience litigating class action lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of detained immigrants.
259. Although ascertainability is not a requirement here, see Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir 2016), if it were, the members of the class and subclass would be readily ascertainable. Both set out specific criteria for inclusion, and Plaintiffs’ and Defendants’ records easily can establish membership.
C. The Proposed Class and Subclass Can Be Certified under Rule 23(b)(1) and/or Rule 23(b)(2)
260. Certification is warranted under both Federal Rule of Civil Procedure 23(b)(1), because separate actions by class members would risk creating inconsistent outcomes and incompatible standards of conduct for Defendants, and under Federal Rule of Civil Procedure 23(b)(2), because Defendants are acting in the same matter
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with respect to the class, such that declaratory and habeas relief with respect to the whole class is appropriate.
261. Rule 23(b)(1)(A) requires a showing that “prosecuting separate actions by . . . individual class members would create a risk of . . . varying adjudications . . . that would establish incompatible standards of conduct.” Fed. R. Civ. P. 23(b)(1). There are now 20 individual plaintiffs in this case, and numerous other lawsuits have been brought by immigration detainees seeking release from Calhoun. If each of the approximately 144 individual class members detained at Calhoun were to bring separate suits making the allegations made here, the adjudication of these actions would risk creating inconsistent decisions that would establish varying standards to which Defendants would have to adhere. Accordingly, certification under Rule 23(b)(1)(A) is proper.
262. Certification is also proper under Rule 23(b)(2) because “the party opposing the class has acted or refused to act on grounds that apply generally to the class” by detaining class members and subclass members without social distancing in violation of their Due Process rights in the face of the COVID-19 pandemic. Thus, final declaratory, injunctive and/or habeas relief is appropriate for the class and subclass as a whole.
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D. In the Alternative, Issue Class Certification is Proper Under Rule 23(c)(4)
263. Federal Rule of Civil Procedure 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Rule 23(c)(4) contemplates using issue certification where class treatment is the superior method of resolving common questions, even if there are some issues that require individualized adjudication. See Martin v. Behr Dayton Thermal Products, 896 F.3d. 405, 413 (6th Cir. 2018).
264. If the Court finds that any of the relief sought for the class or subclass requires some individualized adjudication, the Court should certify the class under Rule 23(c)(4), or under Rule 23(c)(4) in conjunction with Rule 23(b)(1) and/or Rule 23(b)(2), as to common issues.
265. The issues appropriate for certification under Rule 23(c)(4) include, but are not limited to:
a. Common factual questions related to current practices to prevent, manage and treat COVID-19 infections at Calhoun;
b. Common factual questions related to what practices are necessary to prevent, manage and treat COVID-19 infections at Calhoun;
c. Whether continued detention in civil immigration custody at the Calhoun County Correctional Facility of members of the class
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violates the Due Process Clause, and what standard should be applied to answer that question; and d. Whether continued detention in civil immigration custody at the Calhoun County Correctional Facility of members of the subclass violates the Due Process Clause, and what standard should be applied to answer that question.
CLAIMS FOR RELIEF COUNT ONE
Violation of Fifth Amendment Right to Substantive Due Process: Impermissible Punishment of Civil Detainees;
Denial of Reasonable Safety under Current Conditions (All Named Plaintiffs and Class)
266. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein.
267. The Fifth Amendment of the U.S. Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to confinement, the fact, nature, or conditions of which amount to punishment; which is not reasonably related to, or excessive in relation to the government’s non-punitive purpose for confinement; or which creates an unreasonable risk to detainees’ safety and health.
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268. Defendants are subjecting Plaintiffs and members of the putative class to punishment and an unreasonable heightened risk of contracting COVID-19, for which there is no vaccine, reliable treatment, or cure, for no legitimate reason or justification. The detention of Plaintiffs and members of the putative class is not reasonably related to, and is excessive in relation to, the government’s purpose of securing their availability for removal. Defendants’ practices, including but not limited to maintaining population levels too high for social distancing to be possible, subject Plaintiffs and members of the putative class to an unreasonable risk of serious harm, including severe illness and death, in violation of their due process rights.
269. Defendants are acting with deliberate indifference towards Plaintiffs and proposed class members by failing to safeguard their health and safety adequately.
270. Defendants are exposing Plaintiffs and proposed class members to a substantial—indeed grave—risk of serious harm, including death. Defendants know of and are disregarding the substantial risk to Plaintiffs and proposed class members’ health or safety.
271. Thus, Defendants’ continued detention of Plaintiffs and the proposed class members under the current conditions violates their due process rights.
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272. The Fifth Amendment thus requires release of Plaintiffs and the class unless (a) the conditions of confinement are remedied to ensure their reasonable safety, including reduction of the population to bring density to a level that allows for social distancing; and (b) their detention during the pandemic is reasonably related to, and not excessive in relation to, the government’s interest in ensuring their availability for removal.
COUNT TWO Violation of Fifth Amendment Right to Substantive Due Process:
Impermissible Punishment and Inability to Ensure Reasonable Safety For the Medically Vulnerable (Named Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, and William Whernman and Subclass)
273. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein.
274. Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, and William Whernman and the subclass present particular vulnerabilities that place them at a heightened risk of serious illness and death if they are infected with COVID-19.
275. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment.
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The federal government violates this substantive due process right when it subjects civil detainees to confinement, the fact, nature or conditions of which amount to punishment; which is not reasonably related to, or excessive in relation to the government’s non-punitive purpose for confinement; or which creates an unreasonable risk to detainees’ safety and health.
276. Defendants are subjecting Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and the subclass to punishment and unreasonable heightened risk of contracting COVID-19, for which there is no vaccine, reliable treatment, or cure, for no legitimate reason or justification. The detention or redetention of Plaintiffs and members of the putative subclass is not reasonably related to, and excessive in relation to, the government’s purpose of securing their availability for removal.
277. Defendants’ continued detention or redetention of Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and members of the subclass presents an unreasonable risk of serious harm, including severe illness and death, in violation of their due process rights.
278. Defendants’ are acting with deliberate indifference to Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez
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Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and members of the subclass by continuing to detain (or potentially redetain) and expose them to a substantial risk of serious harm, including death, despite Defendants’ knowledge of the substantial risk to Plaintiffs and proposed class members’ health or safety.
279. Given the substantial risk of serious illness or death from COVID-19, there are no conditions of confinement that would permit the safe detention (or redetention) of Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and the subclass, and their continued detention is not reasonably related to, and excessive in relation to, the government’s interest in ensuring their availability for removal.
280. The Fifth Amendment thus requires release of Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and the subclass.
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COUNT THREE Defendants’ Detention of Plaintiffs Where Removal Is Not
Significantly Likely in the Foreseeable Future Violates 8 U.S.C. § 1231(a)(6)
(Plaintiffs Alhalmi, Baroi, Ley Santana, Escobar, Rodriguez Salabarria, and Toma)
281. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full herein.
282. Due process requires that immigration detention bear a reasonable relation to its purpose. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); RosalesGarcia v. Holland, 322 F.3d 386, 411 (6th Cir. 2003). The principal purpose of the statute that authorizes post-final-order detention, 8 U.S.C. § 1231, is to effectuate removal. Where removal cannot be effectuated, detention is not reasonably related to its purpose, would violate due process, and is not statutorily authorized.
283. The removal of Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria and Toma is not significantly likely in the reasonably foreseeable future. Plaintiffs’ detention is therefore not authorized by statute and they are entitled to immediate release under orders of supervision.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: a. Certify this Petition/Complaint as a Class Action; appoint the Named Plaintiffs as class representatives and the Subclass Named Plaintiffs Alhalmi,
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Baroi, Barash, Cardona Ramirez, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, as representatives of the subclass; and appoint the undersigned counsel as class counsel; b. Order Respondents not to transfer Petitioners to another detention facility without this Court’s permission while this action is pending; c. Declare that the continued detention of all Named Plaintiffs and class members during the pandemic violates the Fifth Amendment unless the Plaintiffs or class members present a risk of flight or danger that outweighs the risk of severe illness or death such that continued detention of the individual is reasonable under those circumstances; declare that the conditions of confinement at the Calhoun County Correctional Center for all Named Plaintiffs and class members are currently unconstitutional under the Fifth Amendment because they do not permit social distancing and other measures necessary to minimize the risk of infection with COVID-19; declare that the steps set out in the U.S. Immigration and Customs Enforcement and Removal Operations COVID-19 Pandemic Response Requirements, even if implemented at the Calhoun County Correctional Center, are inadequate to reduce the risk that COVID-19 poses to Plaintiffs’ health and safety to a level that is constitutional under the Fifth Amendment; and declare, based on expert
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evidence, what steps must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights, including a determination of a detainee population level consistent with social distancing and other COVID-19 prevention requirements; d. Issue a Writ of Habeas Corpus and injunctive relief for all Named Plaintiffs ordering their release with appropriate precautionary public health measures unless (1) the Defendants have demonstrated that the Plaintiff presents a risk of flight or danger that outweighs the risk of severe illness or death such that continued detention of the individual is reasonable under those circumstances; and (2) the Defendants have taken the steps that the Court has declared must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights and has reduced the population to the level that the Court has found can be detained consistent with social distancing and other COVID-19 prevention requirements. e. Issue a Writ of Habeas Corpus for all class members ordering their release unless (1) the Defendants have demonstrated that the class member presents a risk of flight or danger that outweighs the risk of severe illness or death such that continued detention of the individual is reasonable under those circumstances; and (2) the Defendants have taken the steps that the Court has declared must be taken in order for individuals to be detained at Calhoun
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without violating their constitutional rights and have reduced the population to the level that the Court has found can be detained consistent with social distancing and other COVID-19 prevention requirements. f. Declare that Defendants’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including individuals over the age of 50 and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, including Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, and members of the subclass, violates the Due Process Clause; g. Issue a Writ of Habeas Corpus and injunctive relief for Plaintiffs Alhalmi, Baroi, Barash, Cardona Ramirez, Escobar, Krcoska, Ley Santana, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Toma, Johanna Whernman, William Whernman, on the ground that their continued detention violates the Due Process Clause; order their immediate release with appropriate precautionary public health measures; and order that they may not be redetained until the threat of the COVID-19 is abated or until a vaccine is available and Defendants obtain sufficient vaccine supplies to vaccinate its population, whichever occurs first;
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h. Issue a Writ of Habeas Corpus for the subclass on the ground that their continued detention violates the Due Process Clause; order their immediate release with appropriate precautionary public health measures; and order that they may not be redetained until the threat of COVID-19 is abated or until a vaccine is available and Defendants obtain sufficient vaccine supplies to vaccinate its population, whichever occurs first;
i. Declare that for persons ordered removed to countries where removals are not currently occurring and who are held in post-order detention under 8 U.S.C. § 1231, including Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria, and Toma, there is good reason to believe that, due to the COVID19 crisis, there is no significant likelihood of their removal in the reasonably foreseeable future, and that such persons, including Plaintiffs Alhalmi, Escobar, Ley Santana, Rodriguez Salabarria, and Toma, must be released with appropriate precautionary public health measures unless the government can rebut that showing;
j. Find that Defendants have failed to rebut the showing of Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria, and Toma that their removal is not significantly likely in the reasonably foreseeable future; order the government immediately to release Plaintiffs Baroi and Ley Santana from detention under an order of supervision and with appropriate precautionary
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public health measures; and enjoin Defendants from redetaining Plaintiffs Alhalmi, Escobar, Rodriguez Salabarria, or Toma unless or until Defendants can establish to the Court’s satisfaction that their removal is significantly likely in the reasonably foreseeable future. k. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and l. Grant any other and further relief that this Court may deem fit and proper, including such relief as may be necessary to protect the health and safety of the Named Plaintiffs, the class and the subclass.
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Dated: June 5, 2020
Respectfully submitted,
_/_s/_M__i_ri_a_m_A_J_.u__k__e_r_m_a_n______ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* American Civil Liberties Union
Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo American Civil Liberties Union
Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

113

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

_/_s_/ _Je_a_n_n_i_e_S_._R__h_ee__________ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com

Robert J. O’Loughlin Jonathan M. Silberstein-Loeb Oleg M. Shik* Katharine W. Gadsden* 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 roloughlin@paulweiss.com jsilberstein-loeb@paulweiss.com oshik@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming

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CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on June 5, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted,
/s/ Jeannie S. Rhee_______

 
 Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3358 Page 1 of 38

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 2:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

PETITIONER-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
Petitioner-Plaintiffs (“Plaintiffs”) Waad Barash, Leonard Baroi, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, and William Whernman hereby move this Court, pursuant to Fed. R. Civ. P. 65, for a temporary restraining order requiring their immediate release from the Calhoun County Correctional Center. The grounds for this motion are set forth in the Brief in Support of Plaintiffs’ Motion for Temporary Restraining Order, filed herewith, and the accompanying Declarations in support.
In accordance with Local Rule 7.1(a), the Plaintiffs’ counsel contacted Jennifer Newby, counsel for Respondent-Defendants, and Andrew Stacer, counsel for separately-represented Petitioner-Plaintiff Janet Malam, to seek their consent of

1

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this motion. Petitioner-Plaintiff Malam has no objection while Respondent-

Defendants oppose Plaintiffs’ request.

Dated: June 5, 2020 Respectfully submitted,

_/_s/_M__i_ri_a_Jm.__A_u_k_e_r_m_a_n______ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* American Civil Liberties Union
Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo American Civil Liberties Union
Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

2

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

/s/Jeannie S. Rhee ________________________ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com

Robert J. O’Loughlin Jonathan M. Silberstein-Loeb Oleg M. Shik* Katharine W. Gadsden* 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3361 Page 4 of 38

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 2:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

BRIEF IN SUPPORT OF PETITIONER-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3362 Page 5 of 38
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .................................................................................................... 1 FACTS ...................................................................................................................... 3 I. PLAINTIFFS ARE ESPECIALLY SUSCEPTIBLE TO AND ARE
AT GRAVE RISK OF HARM FROM COVID-19. ...................................... 3 II. DETENTION AT CALHOUN PUTS PLAINTIFFS AT IMMINENT
RISK OF SUBSTANTIAL BODILY HARM. .............................................. 8 III. RELEASE FROM DETENTION IS THE ONLY WAY TO
PROTECT PLAINTIFFS’ SAFETY AND THEIR DUE PROCESS RIGHTS. ....................................................................................................... 16 ARGUMENT .......................................................................................................... 18 IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. ............. 19 A. Plaintiffs’ Continued Detention at Calhoun Violates the Fifth
Amendment. ....................................................................................... 19 1. Plaintiffs’ Detention is Not Reasonably Related To, and
Excessive in Relation to, the Government’s Interest in Ensuring Their Availability for Removal. ................................19 2. Defendants Cannot Ensure Plaintiffs Reasonable Safety and Are Deliberately Indifferent to the Substantial Risk That Plaintiffs Will Suffer Serious Harm .................................21 B. Plaintiffs’ Release Is the Sole Effective Remedy for the Constitutional Violation at Issue. ....................................................... 23 V. PLAINTIFFS HAVE SATISFIED ALL OTHER FACTORS REQUIRED FOR THIS COURT TO GRANT A TEMPORARY RESTRAINING ORDER. ............................................................................ 25 A. Plaintiffs’ Exposure to COVID-19 Constitutes Irreparable Harm..... 25 B. The Public Interest and the Balance of Equities Weigh Heavily in Plaintiffs’ Favor.................................................................................. 25 CONCLUSION ....................................................................................................... 26 CERTIFICATE OF SERVICE ............................................................................... 30
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TABLE OF AUTHORITIES

CASES

Page(s)

Bell v. Wolfish, 441 U.S. 520 (1979)............................................................................................19

Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 (Apr. 9, 2020) ..............................20

Brown v. Plata, 563 U.S. 493 (2011)............................................................................................22

Cameron v. Bouchard, No. 20-cv-10949, Dkt. 111 (E.D. Mich. May 31, 2020) ....................................22

City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750 (E.D. Mich. 2008) .............................................................17

In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985) ............................................................................18

Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016) ..............................................................................24

Doe v. Barr, No. 20-cv-02263-RMI, 2020 WL 1984266 (N.D. Cal. Apr. 27, 2020) ...................................................................................................................20

Fofana v. Albence, No. 2:20-cv-10869-GAD-DRG, Dkt. 15 (E.D. Mich. Apr. 15, 2020) ...................................................................................................................22

Galan-Reyes v. Acoff, No. 20-cv-345-SMY, 2020 WL 2497133 (S.D. Ill. May 14, 2020).............20, 23

Helling v. McKinney, 509 U.S. 25 (1993)..............................................................................................21

Herrera-Herrera v. Kolitwenzew, No. 2:20-cv-02120-SEM-TSH, ECF No. 36 (C.D. Ill. May 19, 2020) ...................................................................................................................22

ii

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Hutto v. Finney, 437 U.S. 678 (1978)............................................................................................22
J.H. v. Williamson Cty., Tenn., 951 F.3d 709 (6th Cir. 2020) (applying Bell test to pre-trial detainee’s conditions of confinement claim)......................................................19
Kevin M. A. v. Decker, No. CV 20-4593 (KM), 2020 WL 2092791 (D.N.J. May 1, 2020)....................20
McKinney v. Villalva, No. 10-11581, 2010 WL 2730759 (E.D. Mich. July 9, 2010)............................17
Perez v. Wolf, No. No. 5:19-cv-05191-EJD, 2020 WL 1865303 (N.D. Cal. Apr. 14, 2020) .............................................................................................................20
Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276 (E.D. Mich. May 9, 2020)...........................22
Pimentel-Estrada v. Barr, No. 2:20-cv-495-RSM-BAT, 2020 WL 2092430 (W.D. Wash. Apr. 28, 2020) .....................................................................................................20
Prieto Refunjol v. Adducci, No. 2:20-cv-2099, ECF No. 44 (S.D. Ohio May 14, 2020) ...............................22
Refunjol v. Adducci, No. 2:20-cv-2099, 2020 WL 1983077 (S.D. Oh. Apr. 27, 2020).......................20
Refunjol v. Adducci, No. 2:20-cv-2099, 2020 WL 2487119 (S.D. Oh. May 14, 2020) ......................20
Rodriguez Alcantara v. Archambeault, No. 3:20-cv-00756-DMS-AHG, 2020 WL 2315777 (S.D. Cal. May 1, 2020) ...............................................................................................................20
Turner v. Stumbo, 701 F.2d 567 (6th Cir. 1983) ..............................................................................19
Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954) ..............................................................................25
iii

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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)................................................................................................17
Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................................19
Zaya v. Adducci, 2020 WL 1903172 (E.D. Mich., April 18, 2020) .........................................21, 22
STATUTES 28 U.S.C. § 2241........................................................................................................3 OTHER AUTHORITIES Fifth Amendment .........................................................................................18, 19, 23 Eighth Amendment ..................................................................................................20 Apr. 6 Am. Op. & Order, Dkt. 23 ............................................................................24 Coronavirus disease 2019 (COVID-19) Situation Report – 97, World
Health Organization (May 28, 2020)....................................................................3 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent
Detainees, The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/ ...............................................................................................16 May 12 Op. & Order, Dkt 68 ........................................................................... Passim May 23 Op. & Order, Dkt 68...................................................................................24 May 23 Op. & Order, Dkt. 90..........................................................................4, 6, 22 U.S. Immigration & Customs Enforcement, COVID-19 Pandemic Response Requirements 11 (Apr. 10, 2020) (“ICE Guidance”), ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilit ies.pdf..............................................................................................................8, 10
iv

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INTRODUCTION Waad Barash, Leonard Baroi, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, and William Whernman (collectively, “Plaintiffs”) are non-citizen immigration detainees whose medical conditions and/or age make them highly vulnerable to serious illness and death from the COVID-19 disease, and who are being held in civil detention at Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan in violation of their Due Process rights. The COVID-19 disease continues to infect and, in some cases, kill scores of immigrant detainees across the country because of the confined, congregate nature of the detention facilities in which they are held. As this Court recently observed: “the number of COVID-19 cases in detention facilities nationwide . . . highlights the stark reality that communal confinement, even with the precautions [RespondentDefendants (“Defendants”)] have employed, creates a significant risk of COVID-19 infection.” May 12 Op. & Order, Dkt. 68, PageID.1915. This reality is particularly stark for individuals like Plaintiffs, who suffer from medical conditions like asthma, chronic bronchitis, tuberculosis, diabetes, and hypertension, that make them especially vulnerable to COVID-19-related injuries. Indeed, no precaution would adequately mitigate Plaintiffs’ high risk of substantial harm from COVID-19 because, as the Court aptly stated: “COVID-19 does not respect prison walls.” Id. at PageID.1937. Nor is there any vaccine,
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treatment, or cure for COVID-19, which continues to be spread by people who are completely asymptomatic. May 12 Op. & Order, Dkt. 68, PageID.1941 (citing Apr. 6 Order & Op., Dkt. 23, PageID.559). The only option for medically vulnerable people to avoid serious illness or death from COVID-19 is to practice, among other things, rigorous social distancing. As recognized by the Court, however, Defendants have effectively “conceded that they have not implemented any policies specific to the protection of medically vulnerable detainees [at Calhoun]” and that “adequate social distancing remains impossible.” Id. at PageID.1917–18 (crediting testimony of Dr. Homer Venters, physician and epidemiologist), 1948.
Due to the nature of this pandemic and inescapably confined conditions at Calhoun, there remains no way—short of immediate release—to ensure that individuals at highest risk, such as Plaintiffs, do not face a substantial risk of serious harm if they remain detained. The grave risk they face is not reasonably related to, and is excessive in relation to, the government’s interest in securing their availability for removal. Accordingly, the Court should grant Plaintiffs’ motion and order their immediate release.1
1 Although Plaintiffs are moving for a temporary restraining order, they have no objections to the Court treating this motion as a motion for a preliminary injunction. See May 12 Op. & Order, Dkt. 68, PageID.1911 (treating motion for temporary restraining order as a motion for a preliminary injunction because Defendants were on notice of the relief sought and the Court allowed time for extensive briefing and oral argument). 2

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FACTS As of June 1, 2020, 1,734,040 people in the United States have contracted COVID-19, and 102,640 people in the United States have died from the disease.2 Plaintiffs, like other individuals who are older and/or have certain medical conditions, are acutely vulnerable and face greater chances of serious illness or death if exposed to the disease.3 McKenzie Decl. ¶ 40. People who fall into the highestrisk category and who contract COVID-19 typically require advanced support, including highly specialized equipment and a team of medical providers. Golob Decl. ¶ 8, Dkt. 44–2. So long as Plaintiffs are detained at Calhoun, they cannot take the most basic steps to protect themselves; most importantly, they cannot attain any social distance, which puts them at imminent risk of severe illness or death. Venters 3d Supp. Decl. ¶¶ 3, 7. I. PLAINTIFFS ARE ESPECIALLY SUSCEPTIBLE TO AND ARE AT GRAVE RISK OF HARM FROM COVID-19. Plaintiffs’ underlying medical conditions and/or age increase the risk of serious illness or fatality if they are exposed to COVID-19. Plaintiff Waad Barash is 56 years old and reportedly tested positive for tuberculosis upon arrival at Calhoun. Barash Decl. ¶¶ 2, 5. He has yet to receive
2 Coronavirus disease 2019 (COVID-19) Situation Report – 133, World Health Organization (June 1, 2020), Ngo Decl. Ex. A.
3 Amended Petition for the Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive and Declaratory Relief (“Pet.”) ¶¶ 94–124. 3

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any treatment for this condition. Id. ¶ 6. Prior to his detention, Mr. Barash smoked one pack of cigarettes per day for the past ten years. Id. ¶ 5. Mr. Barash also suffers from hypertension, a hernia, and depression. Id. He has not been given any medication to treat his hypertension while at Calhoun, either. Id. ¶ 6. As a result of his advanced age and medical conditions, Mr. Barash, a former smoker, is at high risk for severe illness or death if he contracts COVID-19. May 23 Op. & Order, Dkt. 90, at PageID.2717 (crediting testimony from medical experts and CDC guidance stating that despite some uncertainty surrounding causation, hypertension is nonetheless “a CDC-recognized risk factor” for severe illness and/or death from COVID-19); McKenzie Decl. ¶ 20 (“[R]esearch has [] shown that current and former smokers are at increased risk of severe COVID-19 illness and death.”); Center for Disease Control & Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed June 2, 2020) (listing “smoking” as a condition that may cause an individual to become immunocompromised).
Plaintiff Leonard Victor Baroi is 23 years old and suffers from hypertension. Baroi Decl. ¶¶ 2, 5. Mr. Baroi treats his hypertension with a medication called Beazepril. Id. at 5. Mr. Baroi also suffered from a bout of pneumonia in November 2019. Id. ¶ 5. Although undiagnosed, Mr. Baroi has had a prolonged coughing problem for the past two years. Id. Mr. Baroi is a former
4

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smoker and, prior to his arrest, smoked one or two cigarettes per day for the past two years. Id. Mr. Baroi also suffers from anxiety and has suffered a number of anxiety attacks. Id. As a result of his hypertension and history of smoking, Mr. Baroi is at high risk for severe illness or death if he contracts COVID-19. May 23 Op. & Order, Dkt. 90, at PageID.2717; McKenzie Decl. ¶¶ 20, 22–23.
Plaintiff Lenche Krcoska is 52 years old and suffers from rheumatoid arthritis and a heart arrhythmia. Krcoska Decl. ¶ 3. Rheumatoid arthritis is an autoimmune disease that causes destruction of joins, particularly in the hands and feet. McKenzie Decl. ¶ 24. Ms. Krcoska’s rheumatoid arthritis, from which she has suffered since 2008, causes pain, swelling, and deformation of her joints. Krcoska Decl. ¶ 3. She currently manages her symptoms with medication. McKenzie Decl. ¶ 24. Although her doctor has prescribed a specific diet in light of her rheumatoid arthritis diagnoses, she cannot follow that diet while at Calhoun. Krcoska Decl. ¶ 3. Ms. Krcoska has also been diagnosed with a severe depressive episode and insomnia, for which she was prescribed three separate medications. Id. As a result of these conditions, including her advanced age, she is at high risk for severe illness or death if she contracts COVID-19. McKenzie Decl. ¶ 26.
Plaintiff Sergio Perez Pavon is 36 years old and has suffered from type 2 diabetes for the past 15 years. Golden Decl. ¶¶ 2, 5. Since 2011, Mr. Perez Pavon has treated his diabetes with certain medications (Metformin and Glyburide), but at
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Calhoun, his medications were changed, and, as a result, Mr. Perez Pavon has become insulin dependent. Id. ¶ 5. Because of his diabetes, Mr. Perez Pavon is at high risk for severe illness or death if he contracts COVID-19. McKenzie Decl. ¶ 29; May 12 Op. & Order, Dkt. 68, at PageID.1920 (concluding that diabetic plaintiffs “are at sufficiently heightened risk of severe complication from COVID-19 such that a high risk of exposure translates into high risk of irreparable injury.”).
Yohandry Ley Santana is 33 years old and suffers from asthma. Ley Santana Decl. ¶¶ 2–3. Mr. Ley Santana’s asthma causes daily shortness of breath, which leads him to regularly lose his breath in his sleep. Id. ¶ 4. Mr. Ley Santana was diagnosed with asthma when he was only eight months old and has experienced severe breathing problems that have caused him to be hospitalized numerous times, including twice as an adult. Id. On two occasions, as an adult, Mr. Ley Santana was intubated due to breathing problems. Id. In January 2019, Mr. Ley Santana was hospitalized and diagnosed with severe bronchitis and severe allergies to pollen and dust. Id. ¶ 4. Prior to being detained, Mr. Ley Santana was prescribed a medication to control his allergies and an Albuterol inhaler for his asthma, but he has not received either in detention, even after specifically requesting them. Id. ¶ 5. Because of the frequency and severity of his symptoms, Mr. Ley Santana has a diagnosis of moderate persistent asthma and is thus at high risk for severe illness or death if he contracts COVID-19. McKenzie Decl. ¶¶ 34 (adding that his “lack of access to a
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short-acting albuterol inhaler while in detention likely also increases his risk as it is an important emergency rescue medication for all asthmatics.”); May 23 Op. & Order, Dkt. 90, at PageID.2718–20 (noting that the CDC recognizes moderate asthma as a COVID-19 risk factor and that the symptoms of moderate asthma include, among other things, daily symptoms, weekly nighttime awakenings, and some limitation with respect to normal activity).
Plaintiffs Johanna and William Whernman, mother and son of 57 and 22 years of age, respectively, both suffer from asthma. Johanna Whernman Decl. ¶ 2(a); William Whernman Decl. ¶ 2(a). Both use inhalers to treat their conditions, and neither has consistently received their inhalers while at Calhoun. Johanna Whernman Decl. ¶ 2(c); William Whernman Decl. ¶ 2(c). William is also clinically obese with a body mass index of 30.85. McKenzie Decl. ¶ 35. Johanna further suffers from chronic bronchitis and hypertension. Johanna Whernman Decl. ¶¶ 2(a), (c). Johanna has also been hospitalized multiple times–most recently in February 2020–due to side effects from her asthma medication. Id. ¶ 2(a). Johanna’s age is an even further contributing risk factor. McKenzie Decl. ¶ 39. As a result of all of the above-listed conditions, both William and Johanna are at high risk for severe illness or death if they contract COVID-19. Id. ¶¶ 36, 38.
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II. DETENTION AT CALHOUN PUTS PLAINTIFFS AT IMMINENT RISK OF SUBSTANTIAL BODILY HARM. The danger of COVID-19 to Plaintiffs remains acute at Calhoun. Infectious
diseases like COVID-19 are exponentially more likely to spread in “congregate
environments,” such as immigration detention centers.4 Greifinger Decl. ¶¶ 8, 10,
Dkt. 44–3; Venters Decl. ¶¶ 17–18, Dkt. 47; Letter from Drs. Scott A. Allen & Josiah
Rich to Rep. Bennie Thompson et al. (Mar. 19, 2020), Ngo Decl. Ex. B. The first
positive case of COVID-19 at Calhoun was reported to the Court on May 11, 2020.
See Dkt. 68, at 13. As of June 1, 2020, the most recent day for which data is
available, the facility had two publicly confirmed cases.5 On June 1, 2020, however,
Defendants informed the Court by email of two further asymptomatic cases that were
just discovered as a result of partial testing of some detainees, inmates and staff
4 According to ICE, as of June 1, 2020, 1,461 ICE detainees (across more than 60 facilities in Arizona, California, Colorado, D.C., Florida, Georgia, Illinois, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York, Pennsylvania, Texas, Virginia, and Washington) and 167 ICE employees have tested positive for COVID-19. U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated June 1, 2020); Ngo Decl. Ex. C. Two of these detainees have died in ICE custody. U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated June 1, 2020); Ngo Decl. Ex. C. The number of confirmed cases among ICE detainees and staff is more than four times what it was just over one month ago, and it will continue to grow. See Dkt. 44, at PageID.1024–25 n.5 (noting that ICE had confirmed 35 cases of COVID-19 among its detainees and staff as of April 24, 2020).
5 See U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases (last updated June 1, 2020); Ngo Decl. Ex. C.
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conducted by the National Guard. No information was provided about what housing
units the positive detainees were in, or what other detainees were in contact with
them. See also Venters Decl. ¶ 15, Dkt. 47 (noting rapid spread of COVID-19 among
Michigan Department of Corrections detainees).
ICE guidance acknowledges the risks of COVID-19 to detainees, and calls on
all ICE detention facilities to take certain protective steps where possible.6 In
addition, Defendants have claimed in their discovery responses that Calhoun is
taking certain steps, such as quarantining new detainees. In fact, Plaintiffs’
experience demonstrate that the guidance is not being followed,7 and analysis of
Defendants’ housing data shows that detainees are repeatedly being moved, rather
than being quarantined in the manner Defendants describe.8 However, even if the
6 U.S. Immigration & Customs Enforcement, COVID-19 Pandemic Response Requirements 11 (Apr. 10, 2020) (“ICE Guidance”), ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf; Ngo Decl. Ex. D.
7 Even Defendants’ purported attempt to improve facility hygiene appear inadequate: several Plaintiffs have observed a lack of access to soap and a lack of appropriate use of personal protective equipment (“PPE”) by Calhoun jail staff. Baroi Decl. ¶¶ 6, 18; Krcoska Decl. ¶¶ 6–7; Ley Santana ¶ 5 (“The staff at Calhoun does not typically wear masks, and they only wear gloves when they come into contact with the detainees.”); Venters 3d Supp. Decl. ¶¶ 12 (noting that lack of adequate access to soap “represents a lack of adherence to basic CDC guidelines regarding infection control in detention settings” and that failure to appropriately wear face masks and other PPE violates Calhoun’s own policies).
8 The housing records show, for example, that Calhoun detainees were transferred between housing units at least 250 times between April 15 and May 15, 2020; that there were at least 18 individuals who did not properly remain in a single quarantine area for a full 14 days before being transferred to other areas of the
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ICE guidance were being followed at Calhoun and even if Defendants were implementing all the steps they claim, that would be woefully inadequate protection for the reasons enumerated below. Schriro Decl. ¶ 24, Dkt. 44–5; Venters 3d Supp. Decl. ¶ 7 (noting that even after taking into account additional purported steps taken by Calhoun to quarantine new detainees and improve various hygiene practices at the facility, “Calhoun [still] has an insufficient COVID-19 plan, thereby endangering the safety and health of individuals detained there . . .”).
First, as this Court has observed, ICE effectively concedes that “strict social distancing may not be possible in congregate settings such as detention facilities,”9 and in fact, the physical structure of the Calhoun facilities makes social distancing impossible. See May 12 Op. & Order, Dkt. 68, at PageID.1918; Venters Decl. ¶ 27, Dkt. 47 (the ICE Guidance “fail[s] to address the most common scenarios in which high-risk detainees find themselves in close quarters that make social distancing impossible”); Venters 3d Supp. Decl. ¶ 11 (“There continues to be no guarantee for detainees to engage in social distancing at all times at Calhoun.”). While ICE
facility; that there were at least 39 individuals who were transferred out of a quarantine area after 14 days, despite new arrivals to the facility being placed in that same quarantine area during that time; and that there are many instances of detainees inmates being transferred to and from Pod R–which appears to be an intake unit–originating from and moving to both designated quarantine areas and non-quarantine areas of the facility. Haier Decl. ¶¶ 8–13. 9 ICE Guidance at 13.
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recommends that “[d]etainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 [be] housed separately from the general population,” at Calhoun, medically vulnerable individuals like Plaintiffs remain housed in the general population. Greifinger Decl. ¶ 12(f), 12(h), Dkt. 44–3; Krcoska Decl. ¶ 7; Baroi Decl. ¶¶ 6, 8–12; Ley Santana Decl. ¶ 5; Venters 3d Supp. Decl. ¶ 11.
Nor is Calhoun following its own quarantine procedures: detained individuals are still kept together in groups of approximately 30-60 people who eat, live, sleep, and recreate in closely confined quarters. See Haier Decl. ¶¶ 15–21 (noting that each Plaintiff has been housed in pods containing anywhere up to 56 people)10; Krcoska Decl. ¶ 7 (noting that the beds in her cell are kept three feet apart and that detainees eat meals at communal tables situated less than six feet apart); Baroi Decl. ¶¶ 9–10 (noting that Mr. Baroi shares a room with 30 detainees that sleep on beds approximately three feet apart and sit so close to one another during communal meals that their arms touch); Ley Santana Decl. ¶ 7 (“At Calhoun, I am currently in Pod D with 46 other detainees. It is impossible to practice social distancing in this confined area.”); Golden Decl. ¶ 6 (“During the day, Mr. Perez Pavon spends part of the day in a larger room with approximately 30 to 40 other individuals.”); ICE-000820
10 Mr. Barash has been housed in a pod with between 49 and 56 people; Mr. Baroi in two pods, one a high-risk quarantine area, with between 22-55 people; Ms. Krcoska in a pod with between 16 and 23 people; Mr. Ley-Santana in a pod with between 44 and 53 people; and Mr. Perez Pavon in a pod with between 21 and 32 people. Haier Decl. ¶¶ 15-21. 11

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(noting that Pods A and B, used as high-risk quarantine areas, each have a capacity of 56 individuals with 29 cells); ICE-000388 (stating that unless there is a reason to the contrary, “all meals [served to detainees] will be consumed in the [communal] day room.”); Venters 3d Supp. Decl. ¶¶ 11 (noting the “physical impossibility . . . for detainees to maintain a six foot distance from others at all times.”).11
Second, because detainees are unable to maintain social distancing practices, and COVID-19 is now known to be present at Calhoun, it is likely that COVID-19 has or will spread quickly among Calhoun’s detainees and staff. Golob Decl. ¶ 13, Dkt. 44–2 (“[I]t is reasonable to expect COVID-19 will [] readily spread in detention centers such as prisons and jails, particularly when residents cannot engage in social distancing measures, cannot practice proper hygiene, and cannot isolate themselves from infected residents or staff.”); Schriro Decl. ¶¶ 24(e), 32, 34, Dkt. 44–5. Detainees and staff regularly come and go. See, e.g., Baroi Decl. ¶ 18 (“I have . . . noticed new deputies being frequently rotated into the facility.”); Haier Decl. ¶ 13 (noting that at least 250 detainees were transferred between pods between April 15 and May 15, 2020). Moreover, it is impossible for Plaintiffs to shelter in place;
11 Although Defendants suggest that certain detainees receive meals in their cells and not within any communal areas, this practice appears limited only to detainees being quarantined. See Defs.’ Sup. Resp. to Pls.’ Rog. No. 2 (stating that for the individuals currently in the quarantine process, meals are provided in cells, but that cohorts are nonetheless released from their cells for a limited time each day to, among other things, make calls and shower); Ngo Decl. Ex. E. 12

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instead they must interact with strangers who may be carriers for the disease. Venters Decl. ¶¶ 19, 27, Dkt. 47; Haier Decl. ¶¶ 8 (identifying ten individuals who did not properly remain in quarantine for a full 14 days before being transferred to other areas of the facility); 9 (identifying 20 detainees placed in a detainee pod prior to being quarantined); 10 (identifying 39 detainees transferred out of quarantine after 14 days despite new arrivals being placed in that same quarantine area during that time). As a result, detainees have no way to socially distance themselves from newly arrived detainees and staff members who may be carrying the virus asymptomatically. Golob Decl. ¶ 13 (“With new individuals and staff coming into the detention centers who may be asymptomatic or not yet presenting symptoms, the risk of infection rises even with symptom screening measures.”).
Third, to Plaintiffs’ knowledge, Defendants have yet to implement any comprehensive plan for ongoing testing of either staff or detainees for COVID-19. From March 1, 2020 through May 18, 2020, Defendants tested only eight detainees at Calhoun, an astonishingly low amount, considering that ICE knowingly housed over 50 detainees with chronic medical conditions at Calhoun during that time period. Defs’ First Supp. Resp. to Pls.’ Rog. Nos. 11, 15; Ngo Decl. Ex. E.
In an email to the Court on June 1, 2020, Defendants reported that the National Guard had conducted voluntary testing at Calhoun on May 23, 2020, and that 97 detainees and inmates and 16 staff members were tested. Of those, two detainees
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were confirmed with asymptomatic cases. Plaintiffs have asked Defendants for additional information regarding testing but Defendants have yet to provide any further information.12 Basic questions remain unanswered, like how many detainees were tested, how many people were exposed to the asymptomatic positive detainees (and whether those people will be tested), and whether Defendants have any plans for regular testing. Moreover, as stressed by Dr. Venters, Calhoun appears to be falling short of Michigan Department of Health guidance recommending testing of individuals in “congregate living settings” that exhibit any symptoms of COVID-19, not just a fever. Venters 3d Supp. Decl. ¶ 10.
While some Calhoun detainees were apparently tested, others report having experienced symptoms of COVID-19, but not receiving medical attention or testing. See, e.g., Krcoska Decl. ¶ 8 (“Since arriving at Calhoun, I have not been offered COVID-19 testing.”); Venters Supp. Decl. ¶ 16, Dkt. 57–2 (indicating concern that detainee [Min Dan Zhang] exhibiting “clear and concerning” COVID-19 symptoms was “not properly assessed for potentially having COVID-19” and recommending “immediate assessment and treatment”).13 Further, Calhoun has still yet to produce any data showing how many individuals report COVID-19 symptoms, which “calls
12 Nationally, ICE reportedly has tested just 2,781 of its total 25,911 detainees for COVID-19 as of Sunday, May 31, 2020—approximately 10.7% across all its facilities. See Ngo Decl. Ex. C.
13 Plaintiffs have requested information from Defendants about whether Ms. Zhang had been tested for COVID-19, but received no response. 14

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into question [Calhoun’s] ability to make adequate decisions about who needs testing, whatever the criteria are.” Venters 3d Supp. Decl. ¶ 10(a) (adding that screening form for testing “contains no questions or fields about whether a person has any high-risk condition or age,” which “runs counter to the clear guidance promulgated by the Michigan Department of Health.”). Because Calhoun cannot guarantee widespread, comprehensive, and regular testing for COVID-19, the government effectively concedes that staff and detainees will be unaware about who has actually contracted the disease, who is at risk of exposure, and how far it has spread. See May 12 Op. & Order, Dkt. 68, at PageID.1918 (noting that Calhoun’s “widespread lack of testing is of particular concern given that COVID-19 can spread through asymptomatic transmission.”).14
Indeed, the newly-confirmed presence of two asymptomatic cases at Calhoun shows that simply screening for symptoms at the time of admission is not an adequate protection against the spread of the virus.15 Without “a comprehensive and rigorous testing regime, a lack of proven cases of COVID-19 is functionally meaningless for determining if there is a risk for COVID-19 transmission in a
14 Although Defendants may have recently conducted at least some testing, see Baroi Decl. ¶ 12, Plaintiffs are entirely unaware of any details surrounding these purported tests, including the exact recipients of the tests, and the quality, quantity, and frequency of the testing.
15 But for the National Guard’s purported recent testing, moreover, Calhoun would likely have never discovered the two asymptomatic detainees who tested positive for COVID-19.
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community or institution.” Golob Decl. ¶ 7, Dkt. 44–2. CDC guidance further suggests that any adequately comprehensive testing scheme should involve repeated COVID-19 testing until no new cases are detected for a period of time and should include all residents and staff. Venters 3d Supp. Dec. ¶ 10(e)(i). Further, detainees and staff must be screened for symptoms of COVID-19–not merely for a high temperature–on an ongoing basis. Id. ¶ 10(e)(iv).
For these reasons and others enumerated in the supporting declarations, Plaintiffs are at risk of imminent and substantial bodily harm. III. RELEASE FROM DETENTION IS THE ONLY WAY TO PROTECT
PLAINTIFFS’ SAFETY AND THEIR DUE PROCESS RIGHTS. Because Plaintiffs cannot be safe at Calhoun, only their immediate release will vindicate their Due Process rights. Public health experts and prison administrators across the country have made it abundantly clear that medically vulnerable people kept in detention facilities must be released for their own safety and for the safety of others.16 DHS’s own subject matter experts have stressed that Defendants should release “all detainees in high risk medical groups, such as older people and those
16 As described in prior filings in this case, multiple other jurisdictions have collectively released thousands of people from custody, acknowledging the grave threat posed by a viral outbreak in jails and detention centers. See, e.g., Dkt. 44, PageID.1032 n.11 (listing examples); Schriro Decl. ¶¶ 49–52, Dkt. 44–5. 16

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with chronic disease.” Ngo Decl. Ex. B.17 The same analysis applies with equal force to Calhoun. See Greifinger Decl. ¶ 17, Dkt. 44–3 (correctional medical expert recommending release of high-risk individuals as a “key part of a risk mitigation strategy”); Golob Decl. ¶ 14, Dkt. 44–2 (infectious disease specialist concluding there are “many reasons” that vulnerable people are at grave risk); Venters Decl. ¶ 43, Dkt. 47 (agreeing that “ICE and Calhoun must immediately release Plaintiffs who possess risk factors to prevent their serious illness and/or death.”).
In light of the public health evidence, this Court has already found that “even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease.” Apr. 6 Am. Op. & Order, Dkt. 23, PageID.554. Medically vulnerable individuals remain “at an unreasonable and substantial risk of infection, and consequently of dire health consequences, including death” despite precautionary measures due to the “asymptomatic nature of transmission, the impossibility of adequate social distancing in communal detention spaces, and the inability or unwillingness to test all inmates and staff.” Dkt. 33,
17 Likewise, former Acting Director of ICE John Sandweg has also publicly called on the agency to release “thousands” of people in order to prevent an outbreak amongst detainees, ICE agents and officers, medical personnel, contract workers, and others who work in ICE’s facilities. See John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/, Ngo Decl. Ex. F.
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PageID.715. The “stark reality [is] that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection.” May 12 Op. & Order, Dkt. 68, PageID.1915. These findings apply equally to the Plaintiffs here.
ARGUMENT Plaintiffs meet the legal requirements for the Court to grant them a temporary restraining order: (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); McKinney v. Villalva, No. 1011581, 2010 WL 2730759, at *1 (E.D. Mich. July 9, 2010) (citing Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) (“The same factors are considered in determining whether to grant a request for either a temporary restraining order or a preliminary injunction.”). The court must balance each of the four factors and “no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008). Where plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only show “serious questions going to the merits.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
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IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. Plaintiffs are likely to establish that Defendants violated—and continue to
violate—Plaintiffs’ constitutional rights by condemning them, notwithstanding their age and/or particular medical vulnerabilities, to confined, close quarters, where it is impossible to practice social distancing. Defendants cannot adequately remedy any potential harm suffered by Plaintiffs as a result of exposure to COVID-19. Accordingly, Plaintiffs’ continued detention at Calhoun violates their Fifth Amendment rights.
A. Plaintiffs’ Continued Detention at Calhoun Violates the Fifth Amendment.
This Court has yet to decide what standard applies to Plaintiffs’ claims, finding in each instance to date that Plaintiffs have satisfied the most stringent objective and subjective deliberate indifference test. Dkt. 29, PageID.641, n.1; Dkt. 35, PageID.725; May 12 Op. & Order, Dkt. 68, PageID.1930-32; May 23 Op. & Order, Dkt. 90, PageID.2725 n.1. While Plaintiffs believe, for the reasons set out in Plaintiffs’ Supplemental Brief, Dkt. 82, the punishment test is applicable here, Plaintiffs will nonetheless discuss both tests.
1. Plaintiffs’ Detention is Not Reasonably Related To, and is Excessive in Relation to, the Government’s Interest in Ensuring Their Availability for Removal.
Defendants have violated, and continue to violate, Plaintiffs’ constitutional Due Process rights by detaining them in conditions that in no way “reasonably
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relate[] to a legitimate governmental purpose.” Bell v. Wolfish, 441 U.S. 520, 539 (1979). As civil detainees, Plaintiffs’ detention is governed by the Fifth Amendment. Id. Under the Fifth Amendment, civil detention may not “amount to punishment of the detainee.” Id. at 535. Because of their underlying health conditions and/or age, which make them especially vulnerable to infection from COVID-19, the condition of Plaintiffs’ confinement is not “reasonably related to a legitimate governmental objective”; instead it is “arbitrary or purposeless” or “excessive in relation to” its asserted purpose. Id. at 539, 561; see also J.H. v. Williamson Cty., Tenn., 951 F.3d 709, 717 (6th Cir. 2020) (applying Bell test to pretrial detainee’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 572–73 (6th Cir. 1983) (same).
Defendants’ purpose in detaining Plaintiffs is “assuring [their] presence at the moment of removal.” Zadvydas v. Davis, 533 U.S. 678, 699 (2001). The question is not whether Plaintiffs’ detention would be reasonably related, and not excessive, in relation to that purpose under normal circumstances, but whether it is reasonable during a pandemic. Because Plaintiffs’ continued detention creates a grave risk of serious illness or death from contracting COVID-19, detention is not reasonably
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related to its objective at this time, particularly given that Plaintiffs can be safely
supervised in the community.18
2. Defendants Cannot Ensure Plaintiffs Reasonable Safety and Are Deliberately Indifferent to the Substantial Risk That Plaintiffs Will Suffer Serious Harm
Plaintiffs also satisfy the more stringent “deliberate indifference” standard
traditionally applied in the Eighth Amendment context for prisoners. For the reasons
outlined in Plaintiffs’ Supplemental Brief, Dkt. 82, and the amicus brief, Dkt. 81, if
the Court resorts to the deliberate indifference test, it should apply only the objective
component of that test. Plaintiffs nonetheless satisfy both prongs of the deliberate
indifference standard for the same reason that the Court has found the test satisfied
for other plaintiffs.
As explained in detail above, the overwhelming evidence shows that COVID-
19 poses a serious risk to Plaintiffs, and that continued detention constitutes both
18 See e.g., Refunjol v. Adducci, No. 2:20-cv-2099, 2020 WL 2487119, at *15-16 (S.D. Oh. May 14, 2020); Galan-Reyes v. Acoff, No. 20-cv-345-SMY, 2020 WL 2497133, at *4 (S.D. Ill. May 14, 2020); Rodriguez Alcantara v. Archambeault, No. 3:20-cv-00756-DMS-AHG, 2020 WL 2315777, at *8-9 (S.D. Cal. May 1, 2020); Kevin M. A. v. Decker, No. CV 20-4593 (KM), 2020 WL 2092791, at *6– 8 (D.N.J. May 1, 2020); Pimentel-Estrada v. Barr, No. 2:20-cv-495-RSM-BAT, 2020 WL 2092430, at *17 (W.D. Wash. Apr. 28, 2020); Doe v. Barr, No. 20-cv02263-RMI, 2020 WL 1984266, at *6 (N.D. Cal. Apr. 27, 2020); Refunjol v. Adducci, No. 2:20-cv-2099, 2020 WL 1983077, at *3-4 (S.D. Oh. Apr. 27, 2020); Perez v. Wolf, No. No. 5:19-cv-05191-EJD, 2020 WL 1865303 (N.D. Cal. Apr. 14, 2020); Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 (Apr. 9, 2020).
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objective and subjective deliberate indifference under the circumstances. Indeed, as the Court has said, “any response short of authorizing release” for those “whose underlying health conditions expose [them] to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk.” Dkt. 33, PageID.722–23. Plaintiffs meet the objective prong of the deliberate indifference test because so long as plaintiffs remain detained, they are exposed to a substantial risk of serious harm. See Apr. 6 Am. Op. & Order, Dkt. 23, PageID.566; May 12 Op. & Order, Dkt. 68, Pg.ID# 1934–41 (rejecting Defendants’ argument re imminence of harm, compliance with policies, and societal toleration of risk).
Plaintiffs also meet the subjective prong of the deliberate indifference test (if it is required). In light of Plaintiffs’ underlying health conditions and age, including Defendants’ own designations of Plaintiffs as “high-risk” detainees, Defendants cannot deny awareness of the risk posed to Plaintiffs by COVID-19 or ensure their reasonable safety even with precautionary measures. See Apr. 6 Am. Op. & Order, Dkt. 23, PageID.567–69; Defs.’ First Supp. Resp. to Pls.’ Rog. No. 11; ICE-000415. Moreover, “[b]ecause Defendants have not taken specific precautions to protect medically vulnerable detainees, the Court finds that Defendants have acted unreasonably and have disregarded the risk of COVID-19.” May 12 Op. & Order, Dkt. 68, PageID.1942, 1947–48 (concluding that “Defendants are aware that medically vulnerable detainees require additional protection, but nonetheless have
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declined to act.”); Venters 3d Supp. Decl. ¶¶ 8, 15, 17 (stating that Calhoun wholly lacks an adequate COVID-19 response plan, including the absence of any protocols for social distancing or contact tracing, employment of zero on-site physicians, and incomplete identification of high-risk patients); Zaya v. Adducci, 2020 WL 1903172, at * 5 (E.D. Mich., April 18, 2020) (“[T]o the extent that Respondents’ precautions do not ensure Petitioner’s ‘reasonable safety,’ see Helling v. McKinney, 509 U.S. 25, 33 (1993), they cannot be said to be reasonable.”).
B. Plaintiffs’ Release Is the Sole Effective Remedy for the Constitutional Violation at Issue.
Plaintiffs’ immediate release is the sole effective remedy for the constitutional violation here. When the government fails to meet its obligations to provide adequate medical care, courts have a responsibility to remedy the constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.”). The power to remedy constitutional violations arising from government confinement falls within the Court’s broad power to fashion equitable relief. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978).
To vindicate detainees’ Due Process rights in the face of the COVID-19 pandemic, federal and state courts across the country—including this Court—have ordered the release of detained individuals. See, e.g., May 23 Op. & Order, Dkt. 90; Zaya, 2020 WL 1903172, at * 5; Cameron v. Bouchard, No. 20-cv-10949, Dkt. 111,
23

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3389 Page 32 of 38
(E.D. Mich. May 31, 2020) (establishing process to consider release of medically vulnerable subclass of inmates at Oakland County Jail); Herrera-Herrera v. Kolitwenzew, No. 2:20-cv-02120-SEM-TSH, ECF No. 36 (C.D. Ill. May 19, 2020); Prieto Refunjol v. Adducci, No. 2:20-cv-2099, ECF No. 44 (S.D. Ohio May 14, 2020); Galan-Reyes v. Acoff, No. 20-cv-345-SMY, ECF No. 22 (S.D. Ill. May 14, 2020); Gomes v. Wolf, No. 20-cv-453-LM, ECF No. 123 (D.N.H. May 14, 2020); Savino v. Souza, No. 20-10617-WGY, ECF No. 175 (D. Mass. May 12, 2020); Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276 (E.D. Mich. May 9, 2020); Alcantara v. Archambeault, No. 20cv0756 DMS (AHG), ECF No. 38 (S.D. Cal. Apr. 30, 2020); Zepeda Rivas v. Jennings, No. 20-cv-02731-VC, ECF No. 53 (N.D. Cal. Apr. 29, 2020); Fofana v. Albence, No. 2:20-cv-10869-GAD-DRG, Dkt. 15 (E.D. Mich. Apr. 15, 2020).19
In this case, as in the many similar cases listed above, the Plaintiffs’ immediate release from detention is the only effective remedy for the constitutional violation they are suffering. There is no known cure or treatment for COVID-19, no known vaccine, and no known natural immunity. Social distancing is essential to mitigate the spread of contagion. See supra Facts II. At Calhoun, Plaintiffs cannot maintain the necessary distance from either their fellow detainees or the staff at the facility sufficient to protect their health.
19 See also Schriro Decl. ¶¶ 49–52, Dkt. 44–5. 24

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3390 Page 33 of 38
Because Plaintiffs have shown that their continued detention would cause an unacceptably high risk of grave injury, Plaintiffs are likely to succeed on the merits of their claim that their continued detention violates their rights under the Fifth Amendment, and that release from custody is the only permissible way to ensure their safety and the safety of others with whom they are currently in close and daily contact. V. PLAINTIFFS HAVE SATISFIED ALL OTHER FACTORS
REQUIRED FOR THIS COURT TO GRANT A TEMPORARY RESTRAINING ORDER. A. Plaintiffs’ Exposure to COVID-19 Constitutes Irreparable Harm. For the reasons stated in the Court’s April 6, May 12 and May 23 Orders and Opinions, as well as earlier motions for temporary restraining orders in this case, this Plaintiffs’ exposure to COVID-19 undoubtedly continues to constitute irreparable harm. See, e.g., Apr. 6 Am. Op. & Order, Dkt. 23, at PageID.551 (finding irreparable harm); May 12 Op. & Order, Dkt 68, at PageID.1928–29 (same); May 23 Op. & Order, Dkt 90, at PageID.2712 (same); Pl.’s Mots. for TRO, Dkt. 20, at PageID.351; Dkt. 44, at PageID.1042. B. The Public Interest and the Balance of Equities Weigh Heavily in
Plaintiffs’ Favor. So long as they continue to be confined at Calhoun, Plaintiffs’ health and lives are in danger in violation of their Due Process rights. Releasing them from detention with appropriate precautions will protect their safety and remedy the continued
25

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3391 Page 34 of 38
violation of their constitutional rights, which is in the public interest. Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (holding that protection of constitutional rights is “a purpose that is always in the public interest”). This Court has repeatedly found that the public interest and the balance of equities weigh heavily in Plaintiffs favor. See, e.g., Apr. 6 Am. Op. & Order, Dkt. 23, at PageID.571–74 (finding that the balance of equities favors Plaintiffs because (1) denying an immediate injunction would risk deprivation of Plaintiffs’ constitutional rights, (2) Plaintiffs’ releases protect public health, and (3) the enforcement of the U.S. immigration laws against Plaintiffs can continue largely unabated when Plaintiffs are released); May 12 Op. & Order, Dkt 68, at PageID.1951–52 (similar analysis); May 23 Op. & Order, Dkt 68, at PageID.2726–27 (similar analysis). For the reasons stated in this Court’s prior opinions and orders, as well as earlier motions for temporary restraining orders in this case, the public interest and balance of equities continue to weigh heavily in Plaintiffs’ favor. See Dkt. 20, at PageID.351– 52; Dkt. 44, at PageID.1042–43.20
CONCLUSION
20As detained, indigent individuals, Plaintiff request this Court to exercise its discretion to require no security in issuing this relief. Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810, 815–16 (6th Cir. 1954) (“[T]he matter of requiring security in each case rests in the discretion of the District Judge.”). 26

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3392 Page 35 of 38
For the foregoing reasons, this Court should grant Plaintiffs’ motion for a temporary restraining order and direct Plaintiffs’ immediate release from Calhoun.
27

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3393 Page 36 of 38

Dated: June 5, 2020
Respectfully submitted,
_/_s/_M__i_ri_a_Jm.__A_u_k_e_r_m_a_n______ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* American Civil Liberties Union
Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo American Civil Liberties Union
Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

28

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3394 Page 37 of 38
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
_/_s_/ _Je_a_n_n_i_e_S_._R__h_e_e_________ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com
Robert J. O’Loughlin Jonathan M. Silberstein-Loeb Oleg M. Shik* Katharine W. Gadsden* 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming
29

Case 5:20-cv-10829-JEL-APP ECF No. 98 filed 06/05/20 PageID.3395 Page 38 of 38
CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on June 5, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted, /s/ Jeannie S. Rhee

Case 5:20-cv-10829-JEL-APP ECF No. 98-1 filed 06/05/20 PageID.3396 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 2:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

INDEX OF EXHIBITS Exhibit 1: Declaration of Katherine C. McKenzie dated June 1, 2020 Exhibit 2: Third Supplemental Declaration of Homer Venters dated June 1, 2020 Exhibit 3: Declaration of My Khanh Ngo dated June 2, 2020 Exhibit 4: Declaration of Aaron Haier dated June 1, 2020 Exhibit 5: Declaration of Sam Barash dated June 1, 2020 Exhibit 6: Declaration of Leonard Baroi dated June 1, 2020 Exhibit 7: Declaration of Jonathan Golden dated June 1, 2020 Exhibit 8: Declaration of Lenche Krcoska dated June 1, 2020 Exhibit 9: Declaration of Johandry Ley Santana dated June 1, 2020 Exhibit 10: Declaration of Johanna Whernman dated May 28, 2020 Exhibit 11: Declaration of William Whernman dated May 28, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3397 Page 1 of 15
Exhibit 1
Declaration of Katherine C. McKenzie dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3398 Page 2 of 15
DECLARATION OF DR. KATHERINE C. McKENZIE I, Katherine C. McKenzie, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct. Expert Qualifications
1. My name is Katherine C. McKenzie, MD. I am a faculty member at Yale School of Medicine and the Director of the Yale Center for Asylum Medicine (YCAM). I have practiced medicine at Yale for almost 25 years. I teach undergraduates, medical students and residents, and am a member of Yale Refugee Health Program. I graduated from Boston University School of Medicine and completed my residency at Boston University Hospital. I am a Fellow of the American College of Physicians and have been certified with the American Board of Internal Medicine since 1995.
2. As Director of YCAM, I have completed almost two hundred forensic evaluations of asylum seekers at Yale and in detention facilities. My reviews, clinical cases, and opinion pieces on asylum medicine have been in publications including the New England Journal of Medicine, the Journal of General Internal Medicine, the British Medical Journal, the Journal of Forensic and Legal Medicine, Time magazine, and CNN, among others.1 I teach and lecture extensively nationally and internationally on topics of asylum, detention and physician advocacy.
3. I am an attending physician at the Yale School of Medicine and Yale New Haven Hospital,
1 McKenzie K.C., Loud, Gray, and Arbitrary — The Compounding Trauma of Detention for Asylum Seekers, New England Journal of Medicine.380:807-809 (Feb. 28, 2019), https://www.nejm.org/doi/full/10.1056/NEJMp1816400?query=featured_home; McKenzie, K; Sugarman, K; Mishori, R., Physicians to Trump: Immigration detention centers must close, The Hill (Oct. 14, 2019), https://thehill.com/opinion/healthcare/465637-physicians-to-trump-immigration-detention-centers-must-close; McKenzie K. and Venters H., Policymakers, provide adequate health care in prisons and detention centers, CNN (July 18, 2019), https://www.cnn.com/2019/07/18/opinions/medical-care-prisons-detention-centers-mckenzieventers/index.html.
1

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3399 Page 3 of 15
and I work with urban underserved patients, immigrants, and refugees. I routinely care for individuals who have experienced trauma, poverty or incarceration where I regularly assess their medical as well as psychosocial needs. 4. I am also a medical expert with Physicians for Human Rights. My CV is appended to this declaration. 5. In my 25 years as an internist I have cared for thousands of patients with chronic medical illnesses and immunocompromised states. These individuals are at the most risk for developing severe COVID-19 disease and death if infected with SARS-CoV-2. I spend most of my professional life managing both chronically and acutely ill patients and have cared for thousands of patients with viral infections. 6. At the request of Plaintiffs’ counsel, I reviewed the following regarding seven individuals currently detained at Calhoun County Correctional Center: declaration and medical records of Lenche Krcoska; two declarations regarding Sergio Perez Pavon; declaration and medical records of Yohandry Ley Santana; declaration regarding Waad Barash; declaration of Leonard Victor Baroi; declaration and medical records of William Whernman; and, declaration and medical records of Johanna Whernman. 7. I submit this declaration to summarize my medical opinions about these individuals’ risk of serious illness or death from COVID-19. 8. I am not being compensated for my work on this case. 9. I have not testified at trial or by deposition in the last four years. Background on COVID-19 10. The novel coronavirus, officially known as SARS-CoV-2, causes the disease known as COVID-19. The World Health Organization (WHO) declared COVID-19 to be a global
2

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3400 Page 4 of 15
pandemic on March 11, 2020. SARS-CoV-2 passes from person to person primarily through respiratory droplets when an infected individual coughs or sneezes. It can also survive on hard surfaces for hours to days and the CDC recommends cleaning and disinfection of surfaces regularly as best practice for decreasing the spread of the disease.2 COVID-19 is a highly infectious disease. 11. Outbreaks of COVID-19 are expected to continue until herd immunity is reached in the general population. The Centers for Disease Control and Prevention (CDC) projects that over 200 million people in the United States could be infected with COVID-19 if effective public health measures are not adequately implemented. As of late May, over 1,000 Americans per day are dying of COVID-19.3 Hospitals and health care systems in certain parts of the country have been overwhelmed and forced to operate beyond capacity to provide intensive care as COVID-19 spread across communities around the country. 12. COVID-19 can have devastating effects on individuals’ physical health. The virus can cause severe damage to lung tissue, respiratory failure, heart failure, kidney failure, and death. Patients may show the first symptoms in just a few days after first exposure to COVID-19 and their condition can seriously deteriorate in just five days or even sooner. Older patients and patients with chronic underlying conditions are at a particularly high risk for severe cases and complications. 4 Data from the CDC suggests that some young people without any known chronic underlying conditions have experienced severe cases
2 See, e.g., Centers for Disease Control and Prevention, Cleaning and Disinfection for Households; Interim Recommendations for U.S. Households with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) (last reviewed May 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaningdisinfection.html. 3 Max Roser, Hannah Ritchie, and Esteban Ortiz-Ospina, Coronavirus Disease (COVID-19) – Statistics and Research, Our World in Data (last updated May 29, 2020), https://ourworldindata.org/coronavirus. 4 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China, The Lancet (Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)305663/fulltext.
3

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3401 Page 5 of 15

and even death as well.5 Those in high-risk categories who do not die may have prolonged serious illness, likely requiring intensive and expensive hospital care, including ventilators that are likely to soon be in very short supply. 13. There is no vaccine to prevent COVID-19; a vaccine will likely not be available for widespread use for at least a year. There is no known cure nor definitive treatment for COVID-19 at this time. 14. Because there is no cure, it is crucial to implement strategies to mitigate against COVID19. 15. Mitigation strategies include, frequent sanitization, thorough hand washing and maintaining a safe distance from others – or “social distancing.” Review of Plaintiffs and Vulnerability to COVID-19 Waad Barash 16. I have reviewed the declaration regarding Mr. Waad Barash. He is 56 years old
. He also smoked a pack of cigarettes a day for ten years prior to being detained. It is unclear from the record whether Mr. Barash

17. The CDC has warned that

are at

greater risk of severe COVID-19 infection.6 Scientists have also found evidence that

COVID-19

.7

5 Centers for Disease Control and Prevention, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, February 12, - March 16, 2020, Morbidity and Mortality Weekly Report (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm#F2_down.
6
7
implications for the COVID-19 pandemic, (in press, posted May 6, 2020),
4

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3402 Page 6 of 15

18. While additional research using data that is fully adjusted for comorbidities is necessary

to clarify the connection between

and increased risk of severe illness and

death due to COVID-19, the preliminary data is concerning and the CDC has specifically

advised of the importance that individuals with a diagnosis of

.8 Either directly or indirectly, COVID-19 appears

to affect the cardiovascular system. We know that the virus binds to angiotensin-

converting enzyme 2 (ACE2), which is a protein that is expressed in both the heart and

the lungs, and also a target for

.9 As Dr.

Venters discusses in his declaration, dated May 18, 2020, CDC data,10 population-based

studies,11 and meta-analyses,12 have shown increased prevalence of

in

hospitalized COVID-19 patients, as well as an association between

and

COVID-19 morbidity and mortality. One meta-analysis of 1,558 patients found that

patients with

have 2.29 greater odds of experiencing severe illness with

COVID-19 infection.13 Taken together, these studies raise sufficient concern to all

patients with

as having a high risk of severe illness or death from COVID-

19.

8 Centers for Disease Control and Prevention, People who are at Higher Risk for Severe Illness (last reviewed May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 9 Hulot, J.S., COVID-19 in patients with cardiovascular diseases, Archives of Cardiovascular Disease (Mar. 20, 2020), https://library.umsu.ac.ir/uploads/25_1481_85_243.pdf. 10 Garg S., et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 – COVID-NET, 14 States, March 1–30, 2020, Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention (Apr. 17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm?s_cid=mm6915e3_w. 11 Li B., et al., Prevalence and impact of cardiovascular metabolic diseases on COVID-19 in China, Clinical Research in Cardiology. (2020) 109:531–538. 12 Emami A., et al., Prevalence of Underlying Diseases in Hospitalized Patients with COVID-19: a Systematic Review and Meta-Analysis, Arch Acad Emerg Med. 2020;8(1):e35 (Mar. 24, 2020). 13 Wang B., et al., Does comorbidity increase the risk of patients with COVID-19: evidence from metaanalysis, Aging, 2020;12(7):6049‐6057. doi:10.18632/aging.103000.
5

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3403 Page 7 of 15
19. All studies on COVID-19 risk factors have shown than the risk of severe illness and
death increases with age. Both the CDC and WHO recognize the relationship between
age and COVID-19 risk, with the CDC stating that “the older you are, the higher your
risk of serious disease,”14 and the WHO stating that “the risk of severe disease gradually
increases starting from around 40 years.”15 Recent research has specifically found that in
addition to those 65 and older, those in the age group 50-60 are also have significantly
greater odds of dying from COVID-19 than those younger than 50. Those in the age
group 50-60 have three times the odds of dying than those in the age group 40-60, and
over 14 times the odds of dying than those age 18-40.16
20. Finally, research has also shown that current and former smokers are at increased risk of
severe COVID-19 illness and death. A large meta-analysis of 11,590 COVID-19 patients
has found that both current and former smokers had increased risk of severe illness from
COVID-19 infection.17 One large study looking specifically at former smokers found that
they had 1.25 greater odds of dying from COVID-19 infection than non-smokers.18
14Centers for Disease Control and Prevention, Groups at Higher Risk of Severe Illness, https://www.cdc.gov/widgets/micrositeCollectionViewer/index.html?chost=www.pbso.org&cpath=/news/coronavirus-information/&csearch=fbclid%3DIwAR06FjuraPI_P1iSAhw3lBOIzFZMbPmAMlkgMde3grwUUxN6cHRG_N7Kks&chash=&ctitle=Corona%20Virus%20Information%20%20Palm%20Beach%20County%20Sheriff%27s%20Office&wn=micrositeCollectionViewer&wf=/widgets/microsi teCollectionViewer/&wid=micrositeCollectionViewer1&mMode=widget&mPage=&mChannel=&cdcCollectionid= 403372&cdcTheme=themeteal&cdcGeotag=%7B%27continent%27:%20%276255149%27,%20%27country%27:%20%276252001%27,%20% 27state%27:%20%274155751%27,%20%27region%27:%20%274167510%27%20%7D&chashOptMode=out#!/det ail/405842 (accessed on May 30, 2020). 15 World Health Organization, Coronavirus disease 2019 (COVID-19) Situation Report – 51 (Mar. 11, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_10. 16 Williamson E., et al., OpenSAFELY: factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, MedRxiv (May 7, 2020), 17 Patanavanich R. and Glantz S.A., Smoking Is Associated With COVID-19 Progression: A Meta-analysis. Nicotine & Tobacco Research (Apr. 16, 2020), doi: https://doi.org/10.1101/2020.04.13.20063669. 18 Williamson E., et al., OpenSAFELY: factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, MedRxiv (May 7, 2020), https://www.medrxiv.org/content/10.1101/2020.05.06.20092999v1.full.pdf.
6

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3404 Page 8 of 15

21. Based on Mr. Barash’s

, age, and smoking history, he is at a high risk for

severe illness or death due to COVID-19. Additionally, if Mr. Barash has

if infected with

COVID-19. If Mr. Barash already has

,

he would be additionally high risk for severe illness or death due to COVID-19.

Leonard Victor Baroi

22. I have reviewed the declaration regarding Mr. Leonard Victor Baroi. He is 23 years old.

Mr. Baroi has been diagnosed with

He is also a former smoker, having smoked daily for two

years prior to being detained.

23. Based on the above information along with Mr. Baroi’s

diagnosis and

history of smoking, he is at a high risk for severe illness or death due to COVID-19.

Lenche Krcoska

24. I have reviewed the declaration and medical records of Ms. Lenche Krcoska (born Elena

Treneska). She is 52 years old. Ms. Krcoska was diagnosed with

in

2008 and has undergone treatment since that time. She currently manages her

25. While the common conception of

are at increased risk of infection.19 7

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3405 Page 9 of 15

The CDC currently considers all those with

, which includes

those with

, to be at increased risk of severe COVID-19 disease or

death.20 Because COVID-19 is a novel virus, extensive research on the relationship

between

and COVID-19 infection outcomes is just beginning.21

However, the data we do already have is concerning. A large analysis of over 5,000

COVID-19 deaths in the United Kingdom found that those with

,

including

, have 1.23 times the odds of dying from a COVID-19

infection compared to those without

.22 This finding is in accordance

with our more general understanding of the increased risks of serious medical illness from

infection in those with

.23

26. Based on the information above and her diagnosis of

and age, Ms.

Krcoska is at a high risk for severe illness and death due to COVID-19.

Sergio Perez Pavon

27. I have reviewed the declarations of Jonathan Golden and Marta Pavon Hernandez

regarding Mr. Sergio Perez Pavon. He is 36 years old. Mr. Perez Pavon has had

for the past 15 years, which, prior to being detained,

20 Centers for Disease Control and Prevention, People who are immunocompromised (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/immunocompromised.html. 21 Gianfrancesco, M.A., et al., Rheumatic disease and COVID-19: initial data from the COVID-19 Global Rheumatology Alliance provider registries, The Lancet Rheumatology, 2(5), e250-e253 (Apr. 16, 2020). 22 Williamson E., et al., OpenSAFELY: factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, MedRxiv (May 7, 2020), https://www.medrxiv.org/content/10.1101/2020.05.06.20092999v1.full.pdf. 23 Barrett O., et al., Short- and long-term mortality due to sepsis in patients with rheumatoid arthritis, Rheumatol Int 37(6):1021–1026 (Mar. 12, 2017); Iannone F., et al., Diagnosis of latent tuberculosis and prevention of reactivation in rheumatic patients receiving biologic therapy: international recommendations, J Rheumatol Suppl 91:41–46 (May 2014); Danza A. and Ruiz-Irastorza G., Infection risk in systemic lupus erythematosus patients: susceptibility factors and preventive strategies, Lupus 22(12):1286–1294 (Oct. 2013).
8

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3406 Page 10 of 15

. He also reports, through

his mother,

requires close monitoring and often

requires daily medication. It is also a medical condition that is known to cause immune

dysfunction and increased risk of infection and poor outcomes from infection.24

28. The CDC specifically classifies those with

at increased risk of severe COVID-19 disease and death.25

29. Based on this information and Mr. Perez Pavon’s diagnosis

, he is at a

high risk for severe illness or death due to COVID-19.

Yohandry Ley Santana

30. I have reviewed the declaration and medical records of Mr. Yohandry Ley Santana. He is

33 years old. Mr. Santana has

that has been severe enough to require multiple

hospitalizations, including one hospitalization

31. There is a wide range of

across individuals, and it is likely that the severity

of illness from COVID-19 will be related to the preexisting severity of their disease.

32. As discussed in the declaration of Dr. Homer Venters, dated May 18, 2020,

24
25 Centers for Disease Control and Prevention, People who are at Higher Risk for Severe Illness (last reviewed May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
9

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3407 Page 11 of 15 .26

.27

.28 The CDC has categorized all those with

has high risk for severe COVID-19 infection and death.29 An analysis over 5,000 COVID-

19 deaths from the United Kingdom mentioned above found that those with

have

statistically increased odds of death from COVID-19 (1.11-1.25 times the risk depending

on if patients

).30

26
5075.pdf, at page 5. 27 Id. 28 Id.
29
. 30 Williamson E., et al., OpenSAFELY: factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, MedRxiv (May 7, 2020), https://www.medrxiv.org/content/10.1101/2020.05.06.20092999v1.full.pdf.
31
10

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3408 Page 12 of 15

33. Given what is known about the relationship between

illness as high risk

for severe complications from COVID-19.33

34. Based on the frequency and severity of Mr. Santana’s symptoms, he has a diagnosis of

and is thus high risk for severe illness or death due to COVID-

19 infection. His lack of access to

while in detention likely

also increases his risk as it is an important emergency rescue medication

William Franz Whernman and Johanna Catharina Whernman

35. I have reviewed the declaration and medical records of Mr. William Franz Whernman. He

is 22 years old. Mr. Whernman has asthma and currently

36.
32
33 Centers for Disease Control and Prevention, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, Morbidity and Mortality Weekly Report (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm.
34
11

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3409 Page 13 of 15

.35

The CDC has listed patients with

as being high risk for severe COVID-19

infection,36 and emerging research shows that

is one of the most significant and

reliable predictors of poor outcomes from COVID-19 infection. The same analysis of

over 5,000 COVID-19 deaths from the United Kingdom mentioned above found that

those with a

were 1.27 times as likely to die that those who were not

.37 Those with a

were 1.56 times as likely, and those with a

or more were over twice as likely to die.38 In a French study of 124 COVID-19

patients in the intensive care unit, the need for invasive mechanical ventilation was

significantly increased when the patient

A similar study in

Rhode Island found that COVID-19 patients with a

were significantly more

likely to need an ICU admission as well as mechanical ventilation.40

37. Based on the information above and Mr. Whernman’s

he is at a high risk for severe illness or death due to COVID-19.

38. I have reviewed the declaration and medical records of Ms. Johanna Catharina Whernman.

She is 57 years old. Ms. Whernman has

, and has required

hospitalization due

.

35
36 Centers for Disease Control and Prevention, People who are at Higher Risk for Severe Illness (last reviewed May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 37 Williamson E., et al., OpenSAFELY: factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, MedRxiv (May 7, 2020), https://www.medrxiv.org/content/10.1101/2020.05.06.20092999v1.full.pdf. 38 Id.
39

12

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3410 Page 14 of 15
but reports inconsistent access to while in detention Ms. Whernman is on a medication regimen
Her medical record shows .
39. Based on the information discussed above and Ms. Whernman’s , and age, she is at a high risk for severe illness or death due to
COVID-19. Conclusion and Recommendations
40. For the reasons above, it is my professional opinion that the seven detainees in this report are at high risk of severe illness or death from COVID-19. In addition, the conditions at Calhoun reported by the detainees put them at greater risk of contracting COVID-19 as they are not afforded the opportunity to practice any of the measures recommended by the CDC, including social distancing. Because they are detained in a congregate environment, they are at heightened risk of contracting the disease and infecting other detainees and detention staff who enter and leave the facility daily.
41. Due to the rapidly progressive nature of COVID-19 infection, cases could result in a need for mass hospitalization among people in the detention center and surrounding community, which would contribute to the demand placed on local health care resources. For the health of detainees, detention center staff and the surrounding communities, it would be beneficial to release these detainees to the community where they can practice social distancing as much of the rest of the population is doing. Based on a review of their declarations, all
41
13

Case 5:20-cv-10829-JEL-APP ECF No. 98-2 filed 06/05/20 PageID.3411 Page 15 of 15
detainees would be able to self-quarantine for the recommended 14 days following their release and would otherwise be able to practice social distancing according to public health standards. 42. Detainees who are at increased risk of developing severe COVID-19 should be released to home quarantine. The detainees in this report fit these criteria and should therefore be released from detention and permitted to self-quarantine. Executed this 1st day of June, 2020 at New Haven, Connecticut. /s/Katherine C. McKenzie Katherine C. McKenzie, MD, FACP Director, Yale Center for Asylum Medicine Department of Internal Medicine Yale School of Medicine 367 Cedar Street, Suite 402 New Haven, CT 06510 203-804-1528
14

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3412 Page 1 of 8
Exhibit 2
Third Supplemental Declaration of Homer Venters dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3413 Page 2 of 8
THIRD SUPPLEMENTAL DECLARATION OF HOMER VENTERS
I, Homer Venters, hereby declare as follows:
1. I am submitting this declaration to supplement my prior declarations in this action, Malam v. Adducci, No. 5:20-cv-10829-JEL-APP (E.D. Mich.).
2. As explained in my prior declarations, I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before U.S. Congress regarding mortality inside ICE detention facilities. I have also worked in various leadership positions at the NYC Jail Correctional Health Service, and then at Physicians for Human Rights (PHR) and Community Oriented Correctional Health Services (COCHS). I currently serve as a medical expert in cases involving correctional health and I have a book on the health risks of jail (Life and Death in Rikers Island) that was published in early 2019 by Johns Hopkins University Press.
3. In my prior declarations, I identified core deficiencies in the COVID-19 response in Calhoun County Correctional Center (“Calhoun”), including an insufficient COVID-19 response plan and failure to identify and protect detainees like Plaintiffs in this case, who are at high risk for serious illness or death from COVID-19.
4. I have now reviewed additional information that reflects operational data and protocols from Calhoun as well as reports and declarations from individuals who are currently detained in Calhoun. This information has allowed me to make more specific observations and assessments of the adequacy of the COVID-19 response at Calhoun, and the extent to which it is consistent with the Centers for Disease Control and Prevention (CDC) guidelines and established standards of correctional health and infection control.
5. I reviewed the following documents produced by Defendants for this supplemental declaration:
a. Defendants’ response to interrogatories. b. Defendants’ supplemental responses to interrogatories. c. Defendants’ supplemental responses to request for production. d. Calhoun Inmate Handbook (ICE 000383-404). e. Calhoun Emergency Response Plan (ICE 000757-765). f. Email chain about chronic care at Calhoun (ICE 000766-819).
1

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3414 Page 3 of 8
g. High-risk patient chart produced by ICE, updated as of May 11, 2020 (ICE 000415).
h. Overview of pods and capacities at Calhoun (ICE 000820). i. Calhoun COVID-19 screening form (ICE 000821). j. State of Michigan Department of Health and Human Services testing priority
criteria, dated April 13, 2020 (ICE 000841-843). k. Information about cleaning solution used at Calhoun (ICE 000405-408). l. Photographs of educational posters and other signage at Calhoun. m. Inmate housing reports from April 15, 2020 to May 15, 2020 (ICE 000416-756).
6. I have also reviewed the declarations of the following individuals: a. Leonard Baroi; b. Lenche Krcoska; c. Waad Barash; d. Jonathan Golden, regarding his client, Sergio Perez Pavon; and, e. Yohandry Ley Santana.
7. Based on this information and the ICE and Calhoun protocols discussed in my prior declarations, I continue to find that Calhoun has an insufficient COVID-19 plan, thereby endangering the safety and health of individuals detained there, in particular, those who are at higher risk from COVID-19 like Plaintiffs in this case. I incorporate by reference my prior declarations and highlight below specific concerns regarding the ongoing COVID-19 response in Calhoun as reflected in the new materials.
8. Lack of an adequate COVID-19 response plan. Calhoun’s COVID-19 response plan continues to be deficient in several key areas that are clearly detailed in the CDC guidelines for correctional care:
a. No details on the implementation of social distancing for staff and detainees are presented.
b. No protocol, training or even triggers for contact tracing are detailed in the plan.
c. No mention of how the personal effects of possible or confirmed COVID-19 cases, whether among staff or detainees, will be cleaned and disinfected is present.
d. Because this plan is only for health staff, it does not meet the objectives of the ICE directive from April 2020, to have a unified plan that served both security and health staff. Most of the staff working inside a correctional setting are part of the security service, and they represent a critical element of the infection control efforts in detention settings. Failure to include them in a unified COVID-19 response plan represents a gross deficiency.
9. Lack of tracking of COVID-19 symptoms. It is extremely concerning that Calhoun is unable to produce aggregate data showing how many people are reporting COVID-19
2

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3415 Page 4 of 8
symptoms. Their inability to know how widespread the reporting of COVID-19 symptoms is calls into question their ability to make adequate decisions about who needs testing, whatever the criteria are. In my experience managing correctional outbreaks, one of the first and most basic steps was to establish a database or spreadsheet of symptoms that are reported through passive means (sick call requests) or active means (learned through screening). This data is absolutely essential to tracking the progression of any outbreak in a facility and also reporting to local public health partners when reviewing guidelines regarding testing, treatment and recovery.
a. The lack of attention to symptoms of COVID-19 in Calhoun appears to also include a lack of asking about symptoms, even in quarantine units. The Defendants’ First Supplemental Response to Plaintiffs’ Interrogatories states that temperature checks are utilized on quarantine units to monitor development of COVID-19. This is not adequate. Screening should include asking structured questions about symptoms of COVID-19, since the CDC has reported that patients often have COVID-19 symptoms without fever.1
10. Lack of adequate COVID-19 testing. Calhoun has asserted that they are relying on Michigan Department of Health and CDC guidance regarding testing, but this does not appear to be true, based on the small number of people tested thus far. The Michigan Department of Health memo dated April 13, 2020 identifies expansion of COVID-19 testing criteria that includes testing of individuals with mild symptoms. This expanded approach identifies that people in congregate living settings, not only long-term care settings, should be prioritized for COVID-19 testing if they have mild symptoms. Detention centers are congregate settings and this guideline applies to ICE detainees at Calhoun. In addition, this memo highlights the profound racial disparities in the COVID19 mortality being observed in Michigan, and ICE detention settings, including Calhoun, represent grossly disparate cohorts of racial and ethnic minority people. It is also important to note that the Michigan Department of Corrections has tested every state prisoner for COVID-19 in the past two weeks, a total of almost 38,000 people in 29 facilities.2 The results reported thus far reflect an overall positivity rate of approximately 9%, with rates over 90% in some facilities.3
a. The Corizon COVID-19 screening form has an algorithm for testing at the bottom, but the form contains no questions or fields about whether a person has
1 Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), CENTERS FOR DISEASE CONTROL & PREVENTION (May 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-guidance-management-patients.html (last accessed May 30, 2020). 2 Michigan tests every state prisoner for coronavirus in less than 15 days, MLIVE (May 22, 2020), https://www.mlive.com/public-interest/2020/05/michigan-tests-every-state-prisoner-for-coronavirus-in-less-than-15days.html (last accessed May 30, 2020). 3 Total Confirmed Prisoner and Staff Cases to Date by Location, MICHIGAN DEP’T OF CORRECTIONS, MEDIUM (updated May 30, 2020), https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronaviruscovid-19-250f43144337 (last accessed May 30, 2020).
3

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3416 Page 5 of 8
any high-risk condition or age. This runs counter to the clear guidance promulgated by the Michigan Department of Health which includes age and highrisk conditions as rationale for testing of people in congregate settings with mild symptoms. This form, and the practices regarding symptom-based testing should be changes to be in accord with Michigan guidelines.
b. More generally, the failure to expand testing among detainees at Calhoun represents a decision to promote even more racially disparate COVID-19 response among detainees.
c. Mr. Baroi reports that he was given a COVID-19 test on May 23, 2020 and as of May 30, he had not been informed of the result. It is very unlikely that the result is not known by the facility, and health staff have an obligation to inform Mr. Baroi and others of their test results once they are known.
d. Calhoun reports that a total of 8 tests have been administered, two of which were positive. Both positive tests are from May 2020, raising the clear concern that COVID-19 is inside the facility and will now spread. There is no scientific rationale for failing to implement further testing, and the offer by the Michigan National Guard to assist in this process should be implemented quickly.
e. A comprehensive approach to COVID-19 testing should be implemented that is consistent with Michigan Department of Health and CDC guidelines. This approach should follow the following principles outlines by the CDC:
i. Testing should include all residents and staff, and repeat, periodic testing will be required until no new cases are detected for a period of time determined by the Michigan Department of Health.
ii. New cases of COVID-19 should result in quarantine and re-testing of any close contacts among staff and detained people.
iii. Testing should be implemented in a manner that allows for improved infection control practices, including use of specific housing areas and staffing practices.
iv. Ongoing screening of staff and detained people for symptoms of COVID19, not just temperature, is a necessary element of testing expansion.4
11. Lack of social distancing. There continues to be no guarantee for detainees to engage in social distancing at all times at Calhoun. The information provided by Defendants thus far do not reflect the physical layout of the facility, for instance, how far beds are spaced apart or the physical limitations of common spaces like bathrooms. Information about the square footage of the facility and capacity of housing units and pods sheds little light on
4 Testing Guidance for Nursing Homes, CENTERS FOR DISEASE CONTROL & PREVENTION (May 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-testing.html (last accessed May 31, 2020).
4

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3417 Page 6 of 8
whether detainees can actually social distance, especially given physical constraints on the facility’s layout and restrictions on individuals’ movements, including security and gender classifications. As a result, while there may be educational posters and signage at Calhoun warning detainees about the importance of social distancing and other measures, they do not address the basic issue that is the physical impossibility, as reflected in the personal recounts of Plaintiffs, for detainees to maintain a six-foot distance from others at all times.
a. Mr. Baroi reports that in his housing area, he is unable to engage in social distancing both in his sleeping arrangements both in bunk beds and single mattresses, as well as in the common spaces of his housing areas. Similar lack of social distancing is also reported by Ms. Krcoska, who is housed in a cell with five other detainees and the beds are only about three feet apart. According to his attorney, Mr. Perez Pavon is currently sharing a cell with six other individuals in bunkbeds such that he cannot socially distance.
b. Mr. Baroi also reports that detainees eat in such close quarters that their elbows touch, and that similarly close contact occurs in line to receive meals. Ms. Krcoska similarly reports detainees continuing to eat meals at communal tables where they sit less than six feet apart from one another. Mr. Santana also reports that he is unable to practice social distancing in his pod, with 46 other detainees.
12. Lack of access to soap. Despite the purported measures in place, Plaintiffs like Mr. Baroi and Ms. Krcoska report that soap in the housing areas often runs out and is not quickly replaced. This represents a lack of adherence to basic CDC guidelines regarding infection control in detention settings.5 Ms. Krcoska reports that the lack of soap supplied to detainees results in needing to purchase soap at the commissary, an option not available to people who do not have a minimum balance in their accounts.
13. Lack of appropriate use of PPE. Ms. Krcoska, Mr. Santana and Mr. Baroi report that staff often do not wear face masks while working, despite the policies and testimony of Calhoun to the contrary. Mr. Perez Pavon and Mr. Waad also report having been provided only one mask to reuse since the start of the pandemic.
14. Lack of compliance with stated quarantine procedures. The practice of a 14-day period of quarantine for newly admitted patients is consistent with CDC guidelines, but it appears that Calhoun is not even complying with its stated procedures. For instance:
a. There have been nearly 40 detainees who were transferred in violation of the ICE protocols: they either were not immediately housed in quarantine pod or
5 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CENTERS FOR DISEASE CONTROL & PREVENTION (May 7, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last accessed May 30, 2020).
5

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3418 Page 7 of 8
did not remain in quarantine for a full 14 days before being transferred to other areas of the facility.
b. For detainees who were not transferred in violation of ICE protocols, they were nevertheless compromised by the arrival of newcomers into their pods. Others were exposed by having someone transferred into their cell from another quarantine area during the 14-day period when they should have been kept separated.
c. It is critical that staff who work on any quarantine or isolation units be steady at those posts and also that they receive additional infection control training, none of which is detailed or mentioned in the current policies.
d. The lack of adherence to their own policies regarding quarantine represent an existential threat to the capacity or willingness of Calhoun administrators to enact the most basic of CDC guidelines and infection control policies. These failures also call into question the ability or willingness of Calhoun to follow the quarantine policies for close contacts of newly identified COVID-19 cases, the timelines for medical isolation, and the policies regarding monitoring and return to work after exposure to a COVID-19 case.
15. Lack of access to care in quarantine and medical isolation units. People in medical isolation require daily, out of cell clinical encounters to monitor the severity of their COVID-19 symptoms. This encounter can be done intermittently by nursing and physician staff, but physician evaluation is required for people with active COVID-19 to ensure that progression of shortness of breath, chest pain and other potentially severe symptoms are not occurring and that lung sounds, vital signs and other objective signs do not warrant hospital transfer. The staffing levels reported by Calhoun—zero physicians and sparse nurse practitioner time—are inadequate. This level of staffing is even more concerning given the number of people identified already as high-risk, and who have chronic health problems at Calhoun. This confirms my prior conclusion that Calhoun appears woefully unprepared for a COVID-19 outbreak based on disclosures like the lack of a plan to address staff shortages.
16. Lack of care for patients recovering from COVID-19. Nothing in the various documents, emails and other material provided by Calhoun mentions how patients recovering from COVID-19 will receive care. Housing areas are all designated based on active infection status, but there will be a growing need to identify patients in the recovery phase who require clinical care. The World Health Organization has reported that physical recovery from COVID-19 can extend well beyond the period of active
6

Case 5:20-cv-10829-JEL-APP ECF No. 98-3 filed 06/05/20 PageID.3419 Page 8 of 8
infection, taking six weeks or longer.6 Many of the people I have spoken with in detention settings recently report ongoing symptoms post-COVID-19 infection including shortness of breath or chest pain. Calhoun should have a clinical encounter with a physician for every person who is known or suspected to have experienced COVID-19 to assess any new symptoms or disabilities that exist and create a plan for recovery that address their symptoms and disability. These efforts will likely include pulmonary rehabilitation and physical therapy or exercise as part of what patients need to recover from COVID-19.7
17. Incomplete identification of high-risk patients at Calhoun. The list provided by ICE of individuals they identified as at high risk to COVID-19 is incomplete. For instance, it does not include: (1) individuals age 50 or over; (2) individuals with body mass index (BMI) of 40 or over; and (3) individuals who are current smokers or have a history of smoking. It is also unclear how often ICE updates this list. Lastly, it appears that despite identifying even these individuals as high risk, ICE has decided not to release them and has provided no other protective measures. The list reflects both the limited set of criteria employed by ICE for screening individuals and the lack of clear protocols for increased accommodation and surveillance of these individuals.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 1st day in June 2020 in Port Washington, New York. Signed,
Homer Venters, MD, MS
6 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), WORLD HEALTH ORGANIZATION (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-oncovid-19-final-report.pdf (last accessed May 30, 2020). 7 Recovering from COVID-19: A Patient Guide, DEP’TS OF REHABILITATION MEDICINE AT COLUMBIA UNIVERSITY IRVING MEDICAL CENTER and WEILL CORNELL MEDICAL CENTER (Apr. 15, 2020), https://rehabmed.weill.cornell.edu/sites/default/files/post_covid_rehab_-_patient_guide_0.pdf (last accessed May 30, 2020); What to Know About a Long Recovery Period After Surviving COVID-19, HEALTHLINE https://www.healthline.com/health-news/what-to-do-after-recovering-from-covid-19#Walking (last accessed May 30, 2020).
7

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3420 Page 1 of 70
Exhibit 3
Declaration of My Khanh Ngo dated June 2, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3421 Page 2 of 70

DECLARATION OF MY KHANH NGO, ESQ. IN SUPPORT OF PETITIONER-PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER

I, My Khanh Ngo, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.

1. My name is My Khanh Ngo. I am over the age of 18 and am competent to make this declaration.

2. I am a Staff Attorney with the American Civil Liberties Union Foundation, Immigrants’ Rights Project, and am one of the counsel of record for PetitionerPlaintiffs.

3. I certify that the attached exhibits are true and correct copies of the following:

Exhibit A

Document
Coronavirus disease 2019 (COVID-19) Situation Report – 133, World Health Organization (June 1, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200601-covid-19-sitrep133.pdf?sfvrsn=9a56f2ac_4.

B

Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie Thompson

et al. (Mar. 19, 2020), https://whistleblower.org/wp-

content/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-to-

Congress.pdf.

C

U.S. Immigration & Customs Enforcement, ICE Guidance on COVID-19:

ICE Detainee Statistics and Employee Confirmed Cases (updated June 1,

2020), https://www.ice.gov/coronavirus#citations.

D

U.S. Immigration & Customs Enforcement, Enforcement and Removal

Operations: COVID-19 Pandemic Response Requirements 11 (Apr. 10,

2020),

ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.

E

Defendants’ Supplemental Responses to Plaintiffs’ Interrogatories.

F

John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent

Detainees, The Atlantic (Mar. 22, 2020),

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-

detainees/608536/

1

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3422 Page 3 of 70 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 2nd day of June, 2020, in Oakland, California. /s/ My Khanh Ngo My Khanh Ngo* American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org
2

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3423 Page 4 of 70
Exhibit A
June 1, 2020 WHO Situation Report

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3424 Page 5 of 70

Coronavirus disease (COVID-19)
Situation Report – 133
Data as received by WHO from national authorities by 10:00 CEST, 01 June 2020

Highlights
WHO has published a case report form for suspected cases of multisystem inflammatory syndrome (MIS) in children and adolescents temporally related to COVID-19
During the last two weeks, WHO has delivered over 55 tons of health supplies by road to northeast Syria. These shipments contained equipment and medical supplies to treat many diseases, including COVID-19.
“Clean hands save lives” and “Applaud healthcare workers” campaigns celebrated in North Macedonia. Midwives and nurses were honored with applause, as over 500 healthcare professionals were awarded the “Clean hands” certificate of recognition by WHO.
Since the start of the pandemic, there has been an urgent need to accelerate the research and development of COVID-19 candidate vaccines. WHO has been supporting this effort. Currently over 120 candidate vaccines have been mapped and sites in 40 countries have expressed an interest to join the Vaccine Solidarity Trial. For more on this, see the ‘Subject in Focus’ below.

Situation in numbers (by WHO Region)

Total (new cases in last 24 hours)

Globally Africa Americas Eastern Mediterranean Europe South-East Asia Western Pacific

6 057 853 cases (122 917) 104 242 cases (3 632)
2 817 232 cases (73 439) 520 137 cases (15 136)
2 159 791 cases (17 244) 272 512 cases (11 933) 183 198 cases (1 533)

371 166 deaths (4 000) 2 638 deaths (84)
160 514 deaths (2 812) 12 627 deaths (274)
180 594 deaths (509) 7 743 deaths (312) 7 037 deaths (9)

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3425 Page 6 of 70
Subject in Focus: Accelerating Research for the development of a Vaccine against COVID-19
Since the start of the pandemic, there has been an urgent need to accelerate the research and development of COVID-19 candidate vaccines. Under the umbrella of the Global Research Roadmap, the WHO Working Group for Vaccine Prioritization was constituted under the leadership of the R&D Blueprint team. This working group provides guidance to vaccine developers from a public health perspective and prioritizes vaccine development options vaccine platform approaches and/or candidates to be considered for further development and potentially considered for late-stage evaluation in the context of the global COVID-19 pandemic.
In the past three months, since its creation following the Global Research and Innovation forum hosted by WHO on 11-12 February, important progress has been achieved including:
• Continuously landscaping and mapping candidate vaccines and their progress across the world. Currently, over 120 candidate vaccines have been mapped, raising the question of how to prioritize the ones that will go from early to later development (from phase I to phase 2b/3 clinical trials).
• Developing specific criteria that vaccine scientists, product developers, manufacturers, regulators and funding agencies can use for prioritization.
• Outlining the desired characteristics for safe and effective vaccines, published in the WHO Target Product Profiles (TPP) for COVID-19 vaccines. The TPP outlines the preferred and minimally acceptable profiles for a human COVID-19 vaccine for long-term protection of persons at high ongoing risk of COVID-19, such as healthcare workers, and for reactive use in outbreak settings with rapid onset of immunity to guide vaccine development.
• Developing a core protocol for a globally coordinated randomized controlled clinical trial for vaccines. Recognizing the critical importance to world health of the rapid availability and deployment of effective vaccines against COVID-19, on 9 April WHO published the core protocol for an international, multi-site, individually randomized controlled clinical trial that will enable the concurrent evaluation of benefits and risks of each promising candidate vaccine within 3–6 months of it being made available for the trial.
• Launching a call for expressions of interest from vaccine trial sites around the world using the core protocol, which will include several candidate COVID-19 vaccines that meet WHO prioritization criteria. This will prepare for the launch of a Solidarity Trial for Vaccines that will build on the platform launched for the Therapeutics Solidarity Trial (see Situation Report 119) and lessons learned. Currently, over 150 sites in more than 40 countries have expressed an interest in joining a Vaccine Solidarity Trial.
• Launching a call for interest in engaging on animal studies for vaccine evaluations with 17 laboratories in 8 countries with animal laboratory facilities.

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3426 Page 7 of 70
• Establishing an Expert Group focusing on COVID-19 viruses, reagents and immune assays. The goal of the group is to advance the development of COVID-19 medical countermeasures (vaccines and immunotherapeutic). This is being achieved by providing a platform to discuss availability of viruses and key reagents, to share data on immune assays and the potential for cross reactivity of SARS-CoV-2 with other coronaviruses.
• Establishing an Expert Group focusing on COVID-19 disease modelling and animal models that would replicate human COVID-19 with the goal of accelerating testing of vaccines and therapeutics. WHO provides a pre-clinical model forum to share information and prevent unnecessary repetition of effort.
• Coordinating the Human Challenge Studies Working Group, tasked with consider the feasibility, utility, realistic timelines and approximate costs for establishing a closely monitored experimental challenge model of infection with SARS-CoV-2 (fully virulent or attenuated) in healthy adult volunteers. The Expert Group will also discuss the procedures to be codified and logistical obstacles to be overcome to perform such challenge studies and to propose practical solutions to overcome identified hurdles.
Further information on WHO’s work relating to vaccine research can be found on this webpage.

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3427 Page 8 of 70
Surveillance
Figure 1. Number of confirmed COVID-19 cases reported in the last seven days by country, territory or area, 26 May to 01 June**
**See Annex 1 for data, table and figure notes.

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3428 Page 9 of 70 Figure 2. Number of confirmed COVID-19 cases, by date of report and WHO region, 30 December 2019 through 01 June 2020**
**See Annex 1 for data, table and figure notes.

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3429 Page 10 of 70

Table 1. Countries, territories or areas with reported laboratory-confirmed COVID-19 cases and deaths, by WHO region. Data as of 10 AM CEST, 01 June 2020**

Reporting Country/ Territory/Area
Africa South Africa Nigeria Algeria Ghana Cameroon Guinea Senegal Democratic Republic of the Congo Côte d’Ivoire Gabon Kenya Guinea-Bissau Mali Ethiopia Zambia Equatorial Guinea Central African Republic South Sudan Niger Burkina Faso Sierra Leone

Total confirmed cases
32 683 10 162 9 394 7 881 5 904 3 771 3 645 3 048 2 833 2 655 1 962 1 322 1 265 1 172 1 057 1 043 1 011 994 958 881 861

Total confirmed new cases
1 716 307 127 113 245 65 110 83 34 42 74 66 15 109 0 0 137 0 2 28 9

Total deaths
683 287 653 36 191 23 42 71 33 17 64 8 77 11 7 12 2 10 64 53 46

Total new deaths Transmission classificationi

Days since last reported case

40

Community transmission 0

14

Community transmission 0

7

Community transmission 0

1

Community transmission 0

6

Community transmission 0

0

Community transmission 0

0

Community transmission 0

3

Community transmission 0

0

Community transmission 0

2

Community transmission 0

1

Community transmission 0

0

Community transmission 0

1

Community transmission 0

3

Clusters of cases

0

0

Community transmission 4

0

Community transmission 8

1

Clusters of cases

0

0

Clusters of cases

3

0

Community transmission 0

0

Community transmission 0

0

Community transmission 0

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3430 Page 11 of 70

Reporting Country/ Territory/Area
Chad Madagascar Congo Mauritania United Republic of Tanzania Uganda Togo Cabo Verde Rwanda Mauritius São Tomé and Príncipe Liberia Eswatini Malawi Mozambique Benin Zimbabwe Angola Burundi Comoros Eritrea Botswana Gambia

Total confirmed cases 778 771 604 530 509 458 442 435 370 335 295 288 285 284 254 232 178 86 63 62 39 38 25

Total confirmed new cases 19 13 17 47 0 12 14 14 11 0 0 8 2 5 10 0 4 2 21 19 0 3 0

Total deaths
65 6 20 23 21 0 13 4 1 10 10 27 2 4 2 3 4 4 1 2 0 1 1

Total new deaths
0 0 1 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Transmission classificationi Community transmission Clusters of cases Community transmission Clusters of cases Community transmission Sporadic cases Community transmission Clusters of cases Sporadic cases Clusters of cases Clusters of cases Community transmission Clusters of cases Clusters of cases Clusters of cases Community transmission Sporadic cases Clusters of cases Clusters of cases Community transmission Sporadic cases Clusters of cases Sporadic cases

Days since last reported case 0 0 0 0 24 0 0 0 0 2 5 0 0 0 0 1 0 0 0 0 43 0 9

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3431 Page 12 of 70

Reporting Country/ Territory/Area
Namibia Seychelles Lesotho Territoriesii Mayotte Réunion Americas United States of America Brazil Peru Chile Canada Mexico Ecuador Colombia Dominican Republic Argentina Panama Bolivia (Plurinational State of) Honduras Guatemala El Salvador Cuba Haiti

Total confirmed cases 24 11 2
1 871 471
1 734 040 498 440 155 671 99 688 90 516 87 512 39 098 28 236 17 285 16 214 13 018 9 592 5 094 4 739 2 517 2 045 1 865

Total confirmed new cases 1 0 0
128 0
17 962 33 274 7 386 4 830 775 2 885 527 1 548 377 1 512 487 861 208 132 122 20 281

Total deaths
0 0 0
23 1
102 640 28 834 4 371 1 054 7 092 9 779 3 358 890 502 530 330 310 201 102 46 83 41

Total new deaths
0 0 0

Transmission classificationi
Sporadic cases
Clusters of cases
Sporadic cases

Days since last reported case
0
55
9

2

Clusters of cases

0

0

Clusters of cases

1

1 073 956 141 57 96 364 24 37 4 20 4 10 2 12 2 0 6

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Community transmission 0

Clusters of cases

0

Community transmission 0

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3432 Page 13 of 70

Reporting Country/ Territory/Area
Venezuela (Bolivarian Republic of) Costa Rica Paraguay Nicaragua Uruguay Jamaica Guyana Trinidad and Tobago Bahamas Barbados Saint Vincent and the Grenadines Antigua and Barbuda Grenada Belize Saint Lucia Dominica Saint Kitts and Nevis Suriname Territoriesii Puerto Rico French Guiana Martinique Guadeloupe Cayman Islands

Total confirmed cases 1 459 1 047 986 885 821 581 152 117 101 92 26 25 23 18 18 16 15 14
3 776 477 200 162 141

Total confirmed new cases 89 25 22 0 5 6 2 1 0 0 1 0 0 0 0 0 0 2
58 41 0 0 0

Total deaths
14 10 11 35 22 9 12 8 11 7 0 3 0 2 0 0 0 1
136 1 14 14 1

Total new deaths
0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0

Transmission classificationi Community transmission Clusters of cases Community transmission Community transmission Clusters of cases Clusters of cases Clusters of cases Sporadic cases Clusters of cases Clusters of cases Sporadic cases Clusters of cases Clusters of cases Sporadic cases Sporadic cases Clusters of cases Sporadic cases Sporadic cases

Days since last reported case 0 0 0 3 0 0 0 0 2 7 0 28 5 47 27 51 41 0

3

Community transmission 0

0

Clusters of cases

0

0

Clusters of cases

1

0

Clusters of cases

2

0

Clusters of cases

1

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3433 Page 14 of 70

Reporting Country/ Territory/Area
Bermuda Aruba Sint Maarten United States Virgin Islands Saint Martin Curaçao Falkland Islands (Malvinas) Turks and Caicos Islands Montserrat British Virgin Islands Bonaire, Sint Eustatius and Saba Saint Barthélemy Anguilla Saint Pierre and Miquelon Eastern Mediterranean Iran (Islamic Republic of) Saudi Arabia Pakistan Qatar United Arab Emirates Kuwait Egypt Afghanistan Oman

Total confirmed cases 140 101 78 69 41 20 13 12 11 8 7 6 3 1
151 466 85 261 72 460 56 910 34 557 27 043 24 985 15 750 11 437

Total confirmed new cases 0 0 0 0 0 0 0 0 0 0 0 0 0 0
2 516 1 877 2 964 1 648 661 851 1 536 656 1014

Total deaths
9 3 15 6 3 1 0 1 1 1 0 0 0 0
7 797 503 1 543 38 264 212 959 265 49

Total new deaths
0 0 0 0 0 0 0 0 0 0 0 0 0 0

Transmission classificationi Clusters of cases Sporadic cases Sporadic cases Clusters of cases Sporadic cases Sporadic cases Clusters of cases Sporadic cases Sporadic cases Sporadic cases No cases Sporadic cases Sporadic cases Sporadic cases

Days since last reported case 2 26 18 21 1 3 36 34 48 16 6 62 58 54

63

Community transmission 0

23

Clusters of cases

0

60

Clusters of cases

0

2

Community transmission 0

2

Pending

0

7

Clusters of cases

0

46

Clusters of cases

0

15

Clusters of cases

0

7

Clusters of cases

0

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3434 Page 15 of 70

Reporting Country/ Territory/Area
Bahrain Morocco Iraq Sudan Djibouti Somalia Lebanon Tunisia Jordan Yemen Libya Syrian Arab Republic Territoriesii occupied Palestinian territory Europe Russian Federation The United Kingdom Spain Italy Germany Turkey France Belgium Netherlands

Total confirmed cases 11 398 7 807 6 439 5 026 3 354 1 976 1 220 1 077 739 327 156 122
627
414 878 274766 239 801 233 019 181 815 163 942 148 524 58 381 46 442

Total confirmed new cases 605 27 260 226 160 60 29 1 5 13 26 0
1
9 035 1 936 201 355 333 839 88 195 185

Total deaths
19 205 205 286 24 78 27 48 9 81 5 5
5
4 855 38 489 29 045 33 415 8 511 4 540 28 746 9 467 5 956

Total new deaths
2 1 10 24 2 5 1 0 0 3 0 1

Transmission classificationi Clusters of cases Clusters of cases Clusters of cases Community transmission Clusters of cases Sporadic cases Clusters of cases Community transmission Clusters of cases Pending Clusters of cases Community transmission

Days since last reported case 0 0 0 0 0 0 0 0 0 0 0 3

0

Clusters of cases

0

162

Clusters of cases

0

113

Community transmission 0

2

Community transmission 0

75

Community transmission 0

11

Community transmission 0

25

Community transmission 0

29

Community transmission 0

14

Community transmission 0

5

Community transmission 0

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3435 Page 16 of 70

Reporting Country/ Territory/Area
Belarus Sweden Portugal Switzerland Ireland Ukraine Poland Romania Israel Austria Denmark Serbia Kazakhstan Armenia Czechia Norway Republic of Moldova Finland Azerbaijan Luxembourg Tajikistan Hungary Uzbekistan Greece

Total confirmed cases 42 556 37 542 32 500 30 779 24 990 24 012 23 786 19 257 17 071 16 642 11 669 11 412 11308 9 492 9 273 8 411 8 251 6 859 5 494 4 018 3 930 3 876 3 662 2 917

Total confirmed new cases 898 429 297 17 61 340 215 124 59 4 36 31 450 210 43 0 153 33 248 2 123 9 108 2

Total deaths
235 4 395 1 410 1 656 1 652 718 1 064 1 262 285 668 574 243 41 139 320 236 295 320 63 110 47 526 15 175

Total new deaths
6 0 14 0 1 10 3 9 1 0 3 1 3 8 1 0 1 4 2 0 0 2 1 0

Transmission classificationi Community transmission Community transmission Community transmission Community transmission Community transmission Community transmission Community transmission Community transmission Pending Community transmission Community transmission Pending Clusters of cases Community transmission Clusters of cases Clusters of cases Community transmission Pending Clusters of cases Clusters of cases Pending Community transmission Clusters of cases Clusters of cases

Days since last reported case 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0

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Reporting Country/ Territory/Area
Bulgaria Bosnia and Herzegovina Croatia North Macedonia Estonia Kyrgyzstan Iceland Lithuania Slovakia Slovenia Albania Latvia Cyprus Georgia Andorra San Marino Malta Montenegro Monaco Liechtenstein Holy See Territoriesii Kosovo[1] Isle of Man

Total confirmed cases 2 513 2 509 2 246 2 226 1 869 1 817 1 806 1 675 1 522 1 473 1 143 1 066 944 794 764 687 616 324 98 83 12
1 064 336

Total confirmed new cases 0 16 0 62 4 69 0 5 1 0 7 1 1 11 0 0 0 0 0 0 0
0 0

Total deaths
140 152 103 133 68 16 10 70 28 108 33 24 17 12 51 42 7 9 1 1 0
30 24

Total new deaths
0 0 0 2 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Transmission classificationi Clusters of cases Community transmission Community transmission Clusters of cases Pending Clusters of cases Community transmission Community transmission Clusters of cases Clusters of cases Clusters of cases Clusters of cases Clusters of cases Community transmission Community transmission Community transmission Sporadic cases Clusters of cases Sporadic cases Pending Sporadic cases

Days since last reported case 1 0 1 0 0 0 1 0 0 3 0 0 0 0 3 3 3 26 8 36 25

0

Community transmission 1

0

Pending

10

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Reporting Country/ Territory/Area
Jersey Guernsey Faroe Islands Gibraltar Greenland South-East Asia India Bangladesh Indonesia

Total confirmed cases 308 252 187 169 13
190 535 47 153 26 473

Thailand Maldives Sri Lanka Nepal Myanmar Bhutan Timor-Leste Western Pacific China Singapore Philippines Japan Republic of Korea Malaysia

3 082 1 773 1 633 1 572 224 43 24
84 588 34 884 18 086 16 884 11 503 7 819

Total confirmed new cases 0 0 0 8 0
8 392 2 545 700
1 101 13 171 0 10 0
18 518 862 33 35 57

Total deaths
29 13 0 0 0
5 394 650 1 613 57 5 10 8 6 0 0
4 645 23 957 892 271 115

Total new deaths
0 0 0 0 0

Transmission classificationi Community transmission Community transmission Pending Clusters of cases Pending

Days since last reported case 3 29 38 0 3

230

Clusters of cases

0

40

Community transmission 0

40

Community transmission 0

0

Clusters of cases

0

0

Clusters of cases

0

0

Clusters of cases

0

2

Sporadic cases

0

0

Clusters of cases

1

0

Sporadic cases

0

0

Clusters of cases

38

0

Clusters of cases

0

0

Clusters of cases

0

7

Community transmission 0

1

Clusters of cases

0

1

Clusters of cases

0

0

Clusters of cases

0

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3438 Page 19 of 70

Reporting Country/ Territory/Area
Australia New Zealand Viet Nam Mongolia Brunei Darussalam Cambodia Lao People's Democratic Republic Fiji Papua New Guinea Territoriesii

Total confirmed cases 7 195 1 154 328 179 141 125 19 18 8

Guam

166

French Polynesia

60

Total confirmed new cases 10 0 0 0 0 0 0 0 0
0
0

Total deaths
103 22 0 0 2 0 0 0 0
5 0

Total new deaths
0 0 0 0 0 0 0 0 0

Transmission classificationi Clusters of cases Clusters of cases Clusters of cases Sporadic cases Clusters of cases Sporadic cases Sporadic cases Sporadic cases Sporadic cases

0

Clusters of cases

0

Sporadic cases

Northern Mariana Islands (Commonwealth of the) New Caledonia Subtotal for all regions
Other* Grand total

22 19 6 057 112 741 6 057 853

0 0 122 917 0 122 917

2 0 371 153 13 371 166

0 0 4 000 0 4000

Pending Sporadic cases
Not applicable

Days since last reported case 0 10 1 2 24 2 49 41 39
1 26
10 3
-

**See Annex 1 for data, table and figure notes.

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Technical guidance and other resources

– To view all technical guidance documents regarding COVID-19, please go to this webpage.

– Updates from WHO regional offices

– WHO AFRO

– WHO PAHO

– WHO EMRO

– WHO SEARO

– WHO EURO

– WHO WPRO

– Research and Development – Online courses on COVID-19 and in additional national languages – The Strategic Preparedness and Response Plan (SPRP) outlining the support the
international community can provide to all countries to prepare and respond to the virus – WHO Health Emergency dashboard – Weekly COVID-19 Operations Updates

Recommendations and advice for the public
– Protect yourself – Questions and answers – Travel advice – EPI-WIN: tailored information for individuals, organizations and communities

Case definitions
WHO periodically updates the Global Surveillance for human infection with coronavirus disease (COVID-19) document which includes surveillance definitions.
Definition of COVID-19 death
COVID-19 death is defined for surveillance purposes as a death resulting from a clinically compatible illness in a probable or confirmed COVID-19 case, unless there is a clear alternative cause of death that cannot be related to COVID-19 disease (e.g. trauma). There should be no period of complete recovery between the illness and death.
Further guidance for certification and classification (coding) of COVID-19 as cause of death is available here.

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Annex 1: Data, table and figure notes
Caution must be taken when interpreting all data presented. Differences are to be expected between information products published by WHO, national public health authorities, and other sources using different inclusion criteria and different data cut-off times. While steps are taken to ensure accuracy and reliability, all data are subject to continuous verification and change. Case detection, definitions, testing strategies, reporting practice, and lag times differ between countries/territories/areas. These factors, amongst others, influence the counts presented, with variable underestimation of true case and death counts, and variable delays to reflecting these data at global level.
The designations employed, and the presentation of these materials do not imply the expression of any opinion whatsoever on the part of WHO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted and dashed lines on maps represent approximate border lines for which there may not yet be full agreement. Countries, territories and areas are arranged under the administering WHO region.
The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by WHO in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters.
[1] All references to Kosovo should be understood to be in the context of the United Nations Security Council resolution 1244 (1999). In the map, number of cases of Serbia and Kosovo (UNSCR 1244, 1999) have been aggregated for visualization purposes.
Counts reflect laboratory-confirmed cases and deaths, based on WHO case definitions, unless stated otherwise (see Country, territory, or area-specific updates and errata), and include both domestic and repatriated cases.
Other*: includes cases reported from international conveyances.
Due to the recent trend of countries conducting data reconciliation exercises which remove large numbers of cases or deaths from their total counts, WHO will now display such data as negative numbers in the “new cases” / “new deaths” columns as appropriate. This will aid readers in identifying when such adjustments occur. When additional details become available that allow the subtractions to be suitably apportioned to previous days, graphics will be updated accordingly. Prior situation reports will not be edited; see covid19.who.int for the most up-to-date data.
Additional table notes

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3441 Page 22 of 70
i Transmission classification is based on a process of country/territory/area selfreporting. Classifications are reviewed on a weekly basis, may be revised as new information becomes available, and are based on the highest category reported. Differing degrees of transmission may be present within countries/territories/areas. Categories:
• No cases: with no confirmed cases • Sporadic cases: with one or more cases, imported or locally detected. • Clusters of cases: experiencing cases, clustered in time, geographic location and/or
by common exposures. • Community transmission: experiencing larger outbreaks of local transmission
defined through an assessment of factors including, but not limited to: large numbers of cases not linkable to transmission chains; large numbers of cases from sentinel lab surveillance; and/or multiple unrelated clusters in several areas of the country/territory/area. • Pending: transmission classification has not been reported to WHO.
ii “Territories” include territories, areas, overseas dependencies and other jurisdictions of similar status.
Country, territory, or area-specific updates and errata
No new updates/errata. For previous information, see the log of major changes and errata.

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Exhibit B
March 19, 2020 Letter from Dr. Scott A. Allen and Dr. Josiah D. Rich to Congress

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3443 Page 24 of 70

Scott A. Allen, MD, FACP Professor Emeritus, Clinical Medicine University of California Riverside School of Medicine Medical Education Building 900 University Avenue Riverside, CA 92521

Josiah “Jody” Rich, MD, MPH Professor of Medicine and Epidemiology, Brown University Director of the Center for Prisoner Health and Human Rights Attending Physician, The Miriam Hospital, 164 Summit Ave. Providence, RI 02906

March 19, 2020

The Honorable Bennie Thompson Chairman House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Ron Johnson Chairman Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Mike Rogers Ranking Member House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Gary Peters Ranking Member Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Carolyn Maloney Chairwoman House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

The Honorable Jim Jordan Ranking Member House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

Dear Committee Chairpersons and Ranking Members:
We are physicians—an internist and an infectious disease specialist—with unique expertise in medical care in detention settings.1 We currently serve as medical subject matter experts for the

1 I, Dr. Scott Allen, MD, FACP, am a Professor Emeritus of Medicine, a former Associate Dean of Academic Affairs and former Chair of the Department of Internal Medicine at the University of California Riverside School of Medicine. From 1997 to 2004, I was a full-time correctional physician for the Rhode Island Department of Corrections; for the final three years, I served as the State Medical Program. I have published over 25 peer-reviewed papers in academic journals related to prison health care and am a former Associate Editor of the International Journal of Prisoner Health Care. I am the court appointed monitor for the consent decree in litigation involving
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Department of Homeland Security’s Office of Civil Rights and Civil Liberties (CRCL). One of us (Dr. Allen) has conducted numerous investigations of immigration detention facilities on CRCL’s behalf over the past five years. We both are clinicians and continue to see patients, with one of us (Dr. Rich) currently providing care to coronavirus infected patients in an ICU setting.
As experts in the field of detention health, infectious disease, and public health, we are gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19. In recent weeks, attention has rightly turned to the public health response in congregate settings such as nursing homes, college campuses, jails, prisons and immigration detention facilities (clusters have already been identified in Chinese and Iranian prisons according to news reports2 and an inmate and an officer have reportedly just tested positive at New York’s Rikers Island).3 Reporting in recent days reveals that immigrant detainees at ICE’s Aurora facility are in isolation for possible exposure to coronavirus.4 And a member of ICE’s medical staff at a private detention center in New Jersey has now been reported to have tested positive for coronavirus.5
We have shared our concerns about the serious medical risks from specific public health and safety threats associated with immigration detention with CRCL’s Officer Cameron Quinn in an initial letter dated February 25, 2020, and a subsequent letter of March 13, 2020. We offered to
medical care at Riverside County Jails. I have consulted on detention health issues both domestically and internationally for the Open Society Institute and the International Committee of the Red Cross, among others. I have worked with the Institute of Medicine on several workshops related to detainee healthcare and serve as a medical advisor to Physicians for Human Rights. I am the co-founder and co-director of the Center for Prisoner Health and Human Rights at Brown University (www.prisonerhealth.org), and a former Co-Investigator of the University of California Criminal Justice and Health Consortium. I am also the founder and medical director of the Access Clinic, a primary care medical home to adults with developmental disabilities.
I, Dr. Josiah (Jody) Rich, MD, MPH, am a Professor of Medicine and Epidemiology at The Warren Alpert Medical School of Brown University, and a practicing Infectious Disease Specialist since 1994 at The Miriam Hospital Immunology Center providing clinical care for over 22 years, and at the Rhode Island Department of Corrections caring for prisoners with HIV infection and working in the correctional setting doing research. I have published close to 190 peer-reviewed publications, predominantly in the overlap between infectious diseases, addictions and incarceration. I am the Director and Co-founder of The Center for Prisoner Health and Human Rights at The Miriam Hospital (www.prisonerhealth.org), and a Co-Founder of the nationwide Centers for AIDS Research (CFAR) collaboration in HIV in corrections (CFAR/CHIC) initiative. I am Principal Investigator of three R01 grants and a K24 grant all focused on incarcerated populations. My primary field and area of specialization and expertise is in the overlap between infectious diseases and illicit substance use, the treatment and prevention of HIV infection, and the care and prevention of disease in addicted and incarcerated individuals. I have served as an expert for the National Academy of Sciences, the Institute of Medicine and others. 2 Erin Mendel, “Coronavirus Outbreaks at China Prisons Spark Worries About Unknown Clusters,” Wall Street Journal, February 21, 2020, available at: https://www.wsj.com/articles/coronavirus-outbreaks-at-china-prisonsspark-worries-about-unknown-clusters-11582286150; Center for Human Rights in Iran, “Grave Concerns for Prisoners in Iran Amid Coronavirus Outbreak,” February 28, 2020, available at https://iranhumanrights.org/2020/02/grave-concerns-for-prisoners-in-iran-amid-coronavirus-outbreak/. 3 Joseph Konig and Ben Feuerherd, “First Rikers Inmate Tests Positive for Coronavirus” New York Post. March 18, 2020, available at: https://nypost.com/2020/03/18/first-rikers-island-inmate-tests-positive-for-coronavirus/ 4 Sam Tabachnik, “Ten detainees at Aurora’s ICE detention facility isolated for possible exposure to coronavirus,” The Denver Post, March 17, 2020, available at https://www.denverpost.com/2020/03/17/coronavirus-ice-detentiongeo-group-aurora-colorado/. 5 Emily Kassie, “First ICE Employees Test Positive for Coronavirus,” The Marshall Project, March 19, 2020, available at https://www.themarshallproject.org/2020/03/19/first-ice-employees-test-positive-for-coronavirus
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work with DHS in light of our shared obligation to protect the health, safety, and civil rights of detainees under DHS’s care. Additionally, on March 17, 2020 we published an opinion piece in the Washington Post warning of the need to act immediately to stem the spread of the coronavirus in jails and prisons in order to protect not only the health of prisoners and corrections workers, but the public at large.6
In the piece we noted the parallel risks in immigration detention. We are writing now to formally share our concerns about the imminent risk to the health and safety of immigrant detainees, as well as to the public at large, that is a direct consequence of detaining populations in congregate settings. We also offer to Congress, as we have to CRCL, our support and assistance in addressing the public health challenges that must be confronted as proactively as possible to mitigate the spread of the coronavirus both in, and through, immigration detention and congregate settings.
Nature of the Risk in Immigration Detention and Congregate Settings
One of the risks of detention of immigrants in congregant settings is the rapid spread of infectious diseases. Although much is still unknown, the case-fatality rate (number of infected patients who will die from the disease) and rate of spread for COVID-19 appears to be as high or higher than that for influenza or varicella (chicken pox).
In addition to spread within detention facilities, the extensive transfer of individuals (who are often without symptoms) throughout the detention system, which occurs with great frequency in the immigration context, could rapidly disseminate the virus throughout the entire system with devastating consequences to public health.7
Anyone can get a coronavirus infection. While healthy children appear to suffer mildly if they contract COVID-19, they still pose risk as carriers of infection, particularly so because they may not display symptoms of illness.8 Family detention continues to struggle with managing outbreaks of influenza and varicella.9 Notably, seven children who have died in and around
6 Josiah Rich, Scott Allen, and Mavis Nimoh, “We must release prisoners to lessen the spread of coronavirus,” Washington Post, March 17, 2020, available at https://www.washingtonpost.com/opinions/2020/03/17/we-mustrelease-prisoners-lessen-spread-coronavirus/. 7 See Hamed Aleaziz, “A Local Sheriff Said No To More Immigrant Detainees Because of Coronavirus Fears. So ICE Transferred Them All To New Facilities,” BuzzFeed News, March 18, 2020 (ICE recently transferred170 immigrant detainees from Wisconsin to facilities in Texas and Illinois. “’In order to accommodate various operational demands, ICE routinely transfers detainees within its detention network based on available resources and the needs of the agency…’ an ICE official said in a statement.”), available at https://www.buzzfeednews.com/article/hamedaleaziz/wisconsin-sheriff-ice-detainees-coronavirus 8 Interview with Jay C. Butler, MD, Deputy Director for Infectious Diseases, Centers for Disease Control and Prevention, “Coronovirus (COVID-19) Testing,” JAMA Network, March 16, 2020, available at https://youtu.be/oGiOi7eV05g (min 19:00). 9 Indeed, I (Dr. Allen) raised concerns to CRCL, the DHS Office of Inspector General, and to Congress in July 2018, along with my colleague Dr. Pamela McPherson, about the risks if harm to immigrant children in family detention centers because of specific systemic weaknesses at those facilities in their ability to provide for the medical and mental health needs of children in detention. See, e.g., July 17, 2018 Letter to Senate Whistleblower Caucus Chairs from Drs. Scott Allen and Pamela McPherson, available at https://www.wyden.senate.gov/imo/media/doc/Doctors%20Congressional%20Disclosure%20SWC.pdf. Those concerns, including but not limited to inadequate medical staffing, a lack of translation services, and the risk of
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immigration detention, according to press reports, six died of infectious disease, including three deaths from influenza.10 Containing the spread of an infection in a congregate facility housing families creates the conditions where many of those infected children who do not manifest symptoms will unavoidably spread the virus to older family members who may be a higher risk of serious illness.
Finally, as you well know, social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection and to try to reduce the number of those needing medical treatment from the already-overwhelmed and inadequately prepared health care providers and facilities. However, social distancing is an oxymoron in congregate settings, which because of the concentration of people in a close area with limited options for creating distance between detainees, are at very high risk for an outbreak of infectious disease. This then creates an enormous public health risk, not only because disease can spread so quickly, but because those who contract COVID-19 with symptoms that require medical intervention will need to be treated at local hospitals, thus increasing the risk of infection to the public at large and overwhelming treatment facilities.
As local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community.To be more explicit, a detention center with a rapid outbreak could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc). In the alternate scenario where detainees are released from high risk congregate settings, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out. In the first scenario, many people from the detention center and the community die unnecessarily for want of a ventilator. In the latter, survival is maximized as the local mass outbreak scenario is averted.
It is additionally concerning that dozens of immigration detention centers are in remote areas with limited access to health care facilities. Many facilities, because of the rural locations, have only one on-site medical provider. If that provider gets sick and requires being quarantined for at least fourteen days, the entire facility could be without any medical providers at all during a foreseeable outbreak of a rapidly infectious disease. We simply can’t afford a drain on resources/medical personnel from any preventable cases.
communication breakdowns and confusion that results from different lines of authority needing to coordinate between various agencies and partners from different government programs and departments responsible for detention programs with rapid turnover, all continue to contribute to heightened risks to meeting the medical challenges posed by the spread of the coronavirus. 10 Nicole Acevedo, “Why are children dying in U.S. custody?,” NBC News, May 29, 2019, available at https://www.nbcnews.com/news/latino/why-are-migrant-children-dying-u-s-custody-n1010316
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Proactive Approaches Required
Before coronavirus spreads through immigration detention, proactivity is required in three primary areas: 1) Processes for screening, testing, isolation and quarantine; 2) Limiting transport and transfer of immigrant detainees; and 3) Implementing alternatives to detention to facilitate as much social distancing as possible.
Protocols for early screening, testing, isolation and quarantine exist in detention settings to address infectious diseases such as influenza, chicken pox and measles. However, the track record of ICE facilities implementing these protocols historically has been inconsistent. In the current scenario, with widespread reporting about the lack of available tests for COVID-19 and challenges for screening given the late-onset display of symptoms for what is now a communityspread illness, detention facilities, like the rest of country, are already behind the curve for this stage of mitigation.
Detention facilities will need to rapidly identify cases and develop plans to isolate exposed cohorts to limit the spread, as well as transfer ill patients to appropriate facilities. Screening should occur as early as possible after apprehension (including at border holding facilities) to prevent introduction of the virus into detention centers. We strongly recommend ongoing consultation with CDC and public health officials to forge optimal infection prevention and control strategies to mitigate the health risks to detained patient populations and correctional workers. Any outbreak in a facility could rapidly overwhelm the capacity of healthcare programs. Partnerships with local public health agencies, hospitals and clinics, including joint planning exercises and preparedness drills, will be necessary.
Transferring detainees between facilities should be kept to an absolute minimum. The transfer process puts the immigrants being transferred, populations in the new facilities, and personnel all at increased risk of exposure. The nationwide network of detention centers, where frequent and routine inter-facility transfers occur, represents a frighteningly efficient mechanism for rapid spread of the virus to otherwise remote areas of the country where many detention centers are housed.
Finally, regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.
Congregant settings have a high risk of rapid spread of infectious diseases, and wherever possible, public health mitigation efforts involve moving people out of congregate settings (as we are seeing with colleges and universities and K-12 schools).11 Minimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with
11 Madeline Holcombe, “Some schools closed for coronavirus in US are not going back for the rest of the academic year,” CNN, March 18, 2020, available at https://www.cnn.com/2020/03/18/us/coronavirus-schools-not-going-backyear/index.html; Eric Levenson, Chris Boyette and Janine Mack, “Colleges and universities across the US are canceling in-person classes due to coronavirus,” CNN, March 12, 2020, available at https://www.cnn.com/2020/03/09/us/coronavirus-university-college-classes/index.html.
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chronic diseases. COVID-19 infection among these groups will require many to be transferred to local hospitals for intensive medical and ventilator care—highly expensive interventions that may soon be in short supply.
Given the already established risks of adverse health consequences associated with the detention of children and their families,12 the policy of detention of children and their families in should be reconsidered in light of these new infectious disease threats so that children would only be placed in congregate detention settings when lower risk community settings are not available and then for as brief a time as possible.
In addition, given the low risk of releasing detainees who do not pose a threat to public safety— i.e., those only charged with immigration violations—releasing all immigration detainees who do not pose a security risk should be seriously considered in the national effort to stop the spread of the coronavirus.
Similarly, the practice of forcing asylum seekers to remain in Mexico has created a de facto congregate setting for immigrants, since large groups of people are concentrated on the US southern border as a result of the MPP program in the worst of hygienic conditions without any basic public health infrastructure or access to medical facilities or the ability to engage in social distancing as they await asylum hearings, which are currently on hold as a consequence of the government’s response to stop the spread of the coronavirus.13 This is a tinderbox that cannot be ignored in the national strategy to slow the spread of infection.
ICE recently announced that in response to the coronavirus pandemic, it will delay arresting immigrants who do not pose public safety threats, and will also stop detaining immigrants who fall outside of mandatory detention guidelines.14 But with reporting that immigrant detainees at ICE facilities are already being isolated for possible exposure to coronavirus, it is not enough to simply stop adding to the existing population of immigrant detainees. Social distancing through release is necessary to slow transmission of infection.15
Reassessing the security and public health risks, and acting immediately, will save lives of not only those detained, but also detention staff and their families, and the community-at-large.
12 Report of the DHS Advisory Committee on Family Residential Centers, September 30, 2016, available at https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc16093.pdf 13 See Rick Jervis, “Migrants waiting at US-Mexico border at risk of coronavirus, health experts warn,” USA Today, March 17, 2020, available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hardcoronavirus-migrants-wait-mexico/5062446002/. 14 ICE website, Guidance on COVID-19, Immigration and Enforcement Check-Ins, Updated March 18, 2020, 7:45 pm, available at https://www.ice.gov/covid19. 15 Release of immigrants from detention to control the coronavirus outbreak has been recommended by John Sandweg, former acting head of ICE during the Obama administration, who further noted, "’The overwhelming majority of people in ICE detention don't pose a threat to public safety and are not an unmanageable flight risk.’…’Unlike the Federal Bureau of Prisons, ICE has complete control over the release of individuals. ICE is not carrying out the sentence imposed by a federal judge….It has 100% discretion.’" See Camilo Montoya-Galvez, “’Powder kegs’: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS News, March 19, 2020, available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.
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Our legal counsel, Dana Gold of the Government Accountability Project, is supporting and coordinating our efforts to share our concerns with Congress and other oversight entities about the substantial and specific threats to public health and safety the coronavirus poses by congregate settings for immigrants. As we similarly offered to DHS, we stand ready to aid you in any way to mitigate this crisis and prevent its escalation in light of our unique expertise in detention health and experience with ICE detention specifically. Please contact our attorney, Dana Gold, at danag@whistleblower.org, or her colleague, Irvin McCullough, at irvinm@whistleblower.org, with any questions. Sincerely, /s/ Scott A. Allen, MD, FACP Professor Emeritus, University of California, School of Medicine Medical Subject Matter Expert, CRCL, DHS /s/ Josiah D. Rich, MD, MPH Professor of Medicine and Epidemiology The Warren Alpert Medical School of Brown University Medical Subject Matter Expert, CRCL, DHS
Cc: Dana Gold, Esq. and Irvin McCullough, Government Accountability Project Senate Committee on the Judiciary House Committee on the Judiciary White House Coronavirus Task Force
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Exhibit C
June 1, 2020 ICE Statistics on COVID-19

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Official Website of the Department of Homeland Security

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

ICE Guidance on COVID-19

Overview & FAQs

Employee Confirmed Cases

ICE Detainee Statistics

Judicial Releases

Previous Statements

Page information is recorded from a live database; data may change as the agency receives updated case information.

DETAINED POPULATION 1
AS OF 05/23/2020
25,911

COVID-19 POSITIVE CASES CURRENTLY IN CUSTODY 2
UNDER ISOLATION OR MONITORING AS OF 05/31/2020
754

DETAINEES TESTED
AS OF 05/31/2020
2,781

COVID-19 ICE Detainee Statistics by Facility
AS OF 05/31/2020

Custody/AOR/Facility Atlanta Field Office Folkston ICE Processing Center (D. Ray James) Irwin County Detention Center Stewart Detention Center Boston Field Office Bristol County Detention Center Franklin County House of Corrections Strafford County Corrections Wyatt Detention Center Buffalo Field Office Buffalo (Batavia) Service Processing Center Chicago Field Office Lincoln County Detention Center Pulaski County Detention Center Dallas Field Office Bluebonnet Detention Facility

Confirmed cases currently under isolation or monitoring

Detainee Total confirmed deaths 3 COVID-19 cases 4

3

0

3

7

0

7

23

1

25

1

0

1

2

0

2

2

0

2

2

0

2

0

0

49

1

0

1

20

0

29

122

0

132

https://www.ice.gov/coronavirus#citations

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Custody/AOR/Facility

Confirmed cases currently under isolation or monitoring

Detainee Total confirmed deaths 3 COVID-19 cases 4

Johnson County Law Enforcement Center

1

0

1

Prairieland Detention Facility

18

0

43

Rolling Plains Detention Center

29

0

41

Denver Field Office

Aurora Contract Detention Facility

4

0

5

Detroit Field Office

Calhoun County Correctional Center

1

0

2

Morrow County Correctional Facility

26

0

48

Saint Clair County Jail

5

0

10

El Paso Field Office

El Paso Service Processing Center

38

0

44

Otero County Processing Center

27

0

92

Torrance County Detention Center

17

0

17

Houston Field Office

Houston Contract Detention Facility

42

0

78

IAH Polk Adult Detention Facility

0

0

16

Joe Corley Detention Center

26

0

41

Montgomery Processing Center (Houston)

19

0

22

Los Angeles Field Office

Adelanto ICE Processing Center

2

0

2

LA Staging

0

0

1

Miami Field Office

Broward Transitional Center

20

0

20

Glades County Detention Center

2

0

2

Krome North Service Processing Center

2

0

15

Newark Field Office

Elizabeth Detention Center

0

0

18

Essex County Jail

7

0

8

New Orleans Field Office

Adams County Correctional Center

3

0

17

Alexandria Staging Facility

55

0

55

Catahoula Correctional Center

33

0

51

Etowah County Jail

1

0

1

LaSalle ICE Processing Center - Jena

0

0

11

LaSalle ICE Processing Center - Olla

3

0

3

Pine Prairie ICE Processing Center

2

0

30

Richwood Correctional Center

1

0

65

River Correctional Center

1

0

2

Page 33 of 70

https://www.ice.gov/coronavirus#citations

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Custody/AOR/Facility

Confirmed cases currently under isolation or monitoring

Detainee Total confirmed deaths 3 COVID-19 cases 4

Winn Correctional Center

68

0

99

New York City Field Office

Bergen County Jail

0

0

2

Hudson County Jail

5

0

14

Philadelphia Field Office

Pike County Correctional Facility

14

0

22

York County Prison

0

0

1

Phoenix Field Office

Eloy Federal Contract Facility

1

0

1

Florence Detention Center

4

0

14

La Palma Correctional Facility

14

0

76

Salt Lake City Field Office

Nevada Southern Detention Center

1

0

1

San Antonio Field Office

Port Isabel Detention Center

2

0

3

South Texas ICE Processing Center (Pearsall)

29

0

32

Webb County Detention Center (CCA)

0

0

1

San Diego Field Office

Imperial Regional Detention Facility

2

0

2

Otay Mesa Detention Center (San Diego CDF)

21

1

160

San Luis

2

0

2

San Luis Detention Center

1

0

1

Seattle Field Office

Tacoma ICE Processing Center (Northwest Detention Center)

1

0

1

St. Paul Field Office

Polk County Jail

9

0

10

Washington D.C. Field Office

Caroline Detention Facility

0

0

3

Immigration Centers of America Farmville

2

0

2

TOTAL

754

2

1,461

Page 34 of 70

Updated 06/01/2020 10:46am

1 ICE's FY 2019 Average Daily Population was 50,165.

2 "Currently under isolation or monitoring" includes detainees who tested positive for COVID-19 and are currently in ICE custody under isolation or monitoring. This number excludes detainees who previously tested positive for COVID-19 and were either returned to the general population after a discontinuation of medical monitoring/isolation or are no longer in ICE custody.

3 "Detainee deaths" includes detainees who have died after testing positive for COVID-19 while in ICE custody; COVID-19 may not be the official cause of death.

https://www.ice.gov/coronavirus#citations

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4 "Total confirmed COVID-19 cases" is the cumulative total of detainees who have tested positive for COVID-19 while in ICE custody since testing began in February 2020. Some detainees may no longer be in ICE custody or may have since tested negative for the virus.

Page 35 of 70

↑ Return to top

Last Reviewed/Updated: 06/02/2020

https://www.ice.gov/coronavirus#citations

4/4

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Official Website of the Department of Homeland Security

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

ICE Guidance on COVID-19

Overview & FAQs

Employee Confirmed Cases

ICE Detainee Statistics

Judicial Releases

Previous Statements

ICE EMPLOYEES
AT DETENTION
CENTERS
44

There have been 44 confirmed cases of COVID-19 among ICE employees working in ICE detention facilities.
1 at Adelanto ICE Processing Center (Adelanto, CA) 15 at Alexandria Staging Facility (Alexandria, LA) 2 at Aurora Contract Detention Facility (Aurora, CO) 1 in Bergen County Jail (Hackensack, NJ) 1 at Butler County Jail (Hamilton, OH) 1 at El Paso Processing Center (El Paso, TX) 2 at Elizabeth Contract Detention Facility (Elizabeth, NJ) 1 at Eloy Detention Center (Eloy, AZ) 1 at Essex County Correctional Facility (Newark, NJ) 1 at Florence Correctional Center (Florence, AZ) 2 at Houston Contract Detention Facility (Houston, TX) 1 at Hudson County Jail (Kearny, NJ) 2 at La Salle ICE Processing Center (Jena, AL) 11 at Otay Mesa Detention Center (San Diego, CA) 2 at Stewart Detention Center (Lumpkin, GA)

Updated 05/29/2020 5:15pm

ICE EMPLOYEES
123

There have been 123 confirmed cases of COVID-19 among ICE employees not assigned to detention facilities.

Last Reviewed/Updated: 06/02/2020

Updated 05/29/2020 5:15pm

https://www.ice.gov/coronavirus#citations

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Exhibit D
ICE Guidance to COVID-19 Response (Apr. 10 2020)

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

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

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Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

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

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

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

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

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

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

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

ALL FACILITIES HOUSING ICE DETAINEES

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

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

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

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

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

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

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

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

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

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

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

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

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

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ATTACHMENT LETTER A B C D
E
F
G
H
I

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

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J

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

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

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

K

Assistant Director Peter Berg, Enforcement and Removal

Operations, Updated Guidance: COVID-19 Detained Docket Review

(Apr. 4, 2020).

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Exhibit E
Defendants’ First Supplemental Response to Plaintiffs’ Interrogatories

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Janet Malam, et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Petitioner-Plaintiff,

Civil No. 20-10829

v. Rebecca Adducci,

Honorable Judith E. Levy Mag. Judge Anthony P. Patti

Respondent-Defendant.

_________________________________________/

RESPONDENTS’ FIRST SUPPLEMENT TO ITS RESPONSES AND OBJECTIONS TO PETITIONERS’ FIRST SET OF EXPEDITED INTERROGATORIES
Respondents provide the following supplemental responses based on their

own information, and information provided to Respondents by non-parties

Calhoun County Correctional Center and Corizon Correctional Healthcare staff.

Interrogatory No. 2:

Please describe the physical layout of the facility, including the features,

dimensions, and ventilation of cells, dining rooms, toilets, sinks, shower and

bathing facilities, rooms with telephones that Detainees can use, hallways, the

infirmary, and common areas to which Detainees have access, and the number,

dimensions, and placement, including vertical and horizontal dimensions, of

furnishings (beds/bunks, tables, chairs, toilets, sinks, etc.) and windows within

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those spaces. Within these descriptions, please specify the number of beds/bunks per cell, the vertical and horizontal space between beds/bunks, whether beds or other furniture are bolted or moveable, and the unobstructed living space within cells; and the number and location of cells designated for Isolation, Quarantine, and Cohorting, as well as Special Management Unit cells in the facility. Supplemental Response to Interrogatory No. 2: The facility is 166,500 square feet. The regular housing units (pods A-G) are roughly 4087 square feet. Housing units and pods are the same thing. Pursuant to Fed. R. Civ. P. 33(d), see the attached list of pods with associated capacity and sleeping arrangements. When a person arrives, they are immediately masked, screened and have their temperature taken. If a person answers “no” to all screening questions and does not have a fever, they will be housed in a low risk quarantine unit. If they answer “yes” to any of the screening questions or have a fever, medical is called to assess that individual. Medical will determine if they will be housed in the high risk or low risk quarantine unit, or isolated pending testing. Everyone entering the facility is quarantined for 14 days regardless of risk and kept on lockdown. Calhoun is using medical cells for those that test positive for Covid-19. Pods A and B are used as high-risk quarantine areas, and pods M, P, J and K are being used as low risk quarantine areas. If a detainee or inmate leaves quarantine for any reason, their 14 days will start over. Medical takes temperatures
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and assesses everyone in the quarantine units, high and low risk, twice daily. Quarantined detainees and inmates rotate time out of their cell throughout the day in cohorts by intake date. They are allowed out for one hour to use the phones, shower, etc. Everything is cleaned and wiped down before the next group is allowed out. This process usually results in only a few inmates or detainees out at a time. Food service is delivered to the cell. Detainees and inmates leave the quarantine unit after 14 days if they do not exhibit any signs or symptoms of COVID-19. Interrogatory No. 3: Please describe the usage of common areas, dining areas, bathrooms, shower and bathing facilities, rooms with telephones that Detainees can use, the infirmary, and other areas used by Detainees, including the length of time and time of day used, any schedule for which individuals use the space at particular times, and the maximum number of individuals using the space at one time. Supplemental Response to Interrogatory No. 3: The Nurse Practitioner is onsite Monday-Friday during normal business hours and is also available via phone after hours. There is not currently a physician on-site, the Medical Director is currently on-boarding at another site since he was just hired. In the meantime, the Nurse Practitioner has supervising physicians that she is able to connect with via phone if needed.
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Interrogatory No. 4: Please describe specifically and in detail (1) procedures and protocols for dining or other regularly scheduled activities (e.g., recreation, education, worship, sleeping arrangements) and (2) any modifications to those procedures and protocols effectuated to comply with the CDC’s guidance and other applicable guidelines regarding Social Distancing, including, but not limited to, remaining at least six feet apart and not gathering in groups; or to comply with ICE’s ERO COVID-19 Pandemic Response Requirements. Supplemental Response to Interrogatory No. 4: Detainees are instructed on handwashing, social distancing, best practice for coughing/sneezing, symptoms to look for, and where they can find information in their housing unit. The information is also posted throughout the facility and in each housing unit. Pursuant to Fed. R. Civ. P. 33(d), see attached photographs of education and PPE warnings for different pods. Interrogatory No. 5: Please describe specifically and in detail the procedures and frequency for cleaning and sanitizing all areas and equipment Detainees have access to at Calhoun, including, but not limited to: telephones, computers, phone lines and tables and other surfaces used for dining and other activities, including without limitation: a. Whether frequently touched surfaces (including, but not limited to, doorknobs,
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light switches, sink handles, countertops, toilets, toilet handles, and recreation equipment) are cleaned several times a day using agency-registered disinfectants, pursuant to ICE’s ERO COVID-19 Pandemic Response Requirements, at page 10; and b. Whether dining materials (including, but not limited to, utensils, dishes, and cups) or cleaning materials (including, but not limited to, towels, rags, soaps, and disinfectants) that Detainees use on a daily basis are shared between Detainees before they are cleaned. Supplemental Response to Interrogatory No. 5: Tables, chairs, door handles, bathrooms, phones, video visitation equipment, etc. are cleaned numerous times a day. Common areas do not have light switches (deputy controls lights). Assigned inmate workers are supervised while cleaning. Everyone is issued their own personal dining utensil to keep. They are responsible to clean their own eating utensil. Food trays are cleaned and sanitized after every meal. Interrogatory Request No. 6: Please describe specifically and in detail Calhoun’s (1) inventory of hygiene supplies (including, but not limited to, soap, hand sanitizer, and tissues) and PPE and (2) plans or procedures to maintain sufficient stock of hygiene supplies and PPE pursuant to ICE’s ERO COVID-19 Pandemic Response Requirements, at
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pages 8 and 9. Supplemental Response to Interrogatory No. 6: Calhoun has secured vendors for PPE and hygiene products and is able to re-order as needed. Calhoun also maintains a backup supply as previously detailed. Interrogatory Request No. 11: Please describe specifically and in detail how many Detainees You have identified as part of the At-Risk Population or who meet the CDC’s Identified Populations Guidelines since March 1, 2020, the specific demographic factors and/or underlying medical conditions at issue, whether each Detainee was identified by Calhoun or ICE staff as higher risk, the date and time that each Detainee was booked into Calhoun, the date and time that ICE was notified that each Detainee was higher risk, each Detainee’s current custody status, and the reasons why each Detainee was released or continued in custody despite being higher risk. Detainee names may be redacted. Supplemental Response to Interrogatory No. 11: The acronyms used in the document produced in response to interrogatory number 11 are: “N/A” not applicable; “SLRRFF” substantial likelihood of removal in the reasonably foreseeable future; “GERD” gastroesophageal reflux disease; “NOS” not otherwise specified; “TB” tuberculosis; “DM” diabetes mellitus; “IHSC” ICE Health Service Corp.; “COPD” chronic obstructive pulmonary disease; “HTN”
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hypertension; “IJ” immigration judge. As reflected in the emails produced, Calhoun provides a chronic care list of detainees with any chronic medical condition, and Lt.Cmdr. Manns asked that the highlighted items specifically be included. Petitioners request for information about how safety and flight risk was assessed or how medical conditions were weighed is beyond the scope of the request and Respondents assert deliberative process exemption from discovery. Similarly, creation of a list of who meets Petitioners’ definition of “at-risk” is beyond the scope of the request, and the information is equally within the ability of Petitioners to obtain. Interrogatory No. 14: Please provide the number of Inmates or Detainees at Calhoun who were suspected to have COVID-19, who had symptoms associated with COVID-19, who were exposed to COVID-19, or who requested COVID-19 testing and have not been provided a test. For each individual who was not tested, please describe specifically and in detail why a test was not administered. Supplemental Response to Interrogatory No. 14: Petitioners’ request for identification of who displayed COVID-19 symptoms but were not tested is beyond the scope of the request. In determining who to test, Calhoun medical staff relies on CDC Testing Guidelines already produced, the attached CDC information, the attached memo from the Michigan Department of
7

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3483 Page 64 of 70
Health and Human Services outlining testing guidelines, and a screening tool, an updated copy of which is attached. In accordance with these, an individualized medical assessment is made whether to test an individual that has a temperature greater than 100.4 and/or other COVID related symptoms. Calhoun does not have a way to search what patients wrote on their Medical Request forms to see if anyone has requested testing, electronic reports track numbers of encounters. Interrogatory No. 15:
Please provide the results of and the number of COVID-19 tests that have been administered to Detainees, Staff, and Inmates at Calhoun, including, without limitation, the frequency, the type of test given, the dates given, the reason the test was given, how the test was administered, who administered the test, and Calhoun’s and ICE’s actions taken in response to each Detainee, Staff, or Inmate who tested positive, including whether the positive result was reported to an ERO Field Office Director (or designee) or Field Medical Coordinator pursuant to ICE’s ERO COVID-19 Pandemic Response Requirements, at page 6, or to state or local public health authorities. Supplemental Response to Interrogatory No. 15: Petitioners’ request for identification of who displayed COVID-19 symptoms but were not tested and why the test was not administered is beyond the scope of the request. COVID-19 tests were administered at Calhoun on the following dates:
8

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3484 Page 65 of 70
Inmate – 4/6/20 (negative) Detainee - 4/24/20 (negative) Detainee - 5/7/20 (positive) Inmate – 5/9/20 (negative) Detainee - 5/9/20 (negative) Detainee - 5/9/20 (negative) Detainee - 5/9/20 (positive) Inmate -5/14/20 (negative) The Michigan National Guard has offered to conduct free voluntary testing of inmates and detainees at Calhoun, the specifics of how and when the testing will be administered are still being decided. Interrogatory No.16:
Please provide the number and dates since March 1, 2020, of positive results for COVID-19 tests administered to Detainees, Staff, and Inmates at Calhoun or any Staff or affiliate who has visited Calhoun since March 1, 2020, including those results that are self-reported by You and Staff and based on a diagnosis or testing that was not done at Calhoun. Supplemental Response to Interrogatory No.16: There are two positive test reports at Calhoun.
As to objections MATTHEW SCHNEIDER United States Attorney By: /s/ Jennifer L. Newby_______
9

Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3485 Page 66 of 70

Dated: May 22, 2020

Jennifer L. Newby (P68891) Assistant United States Attorney Attorneys for Respondents Adducci, Albence, Wolf, Barr, and ICE 211 W. Fort Street, Suite 2001 Detroit, Michigan 48226 (313) 226-0295 Jennifer.Newby@usdoj.gov

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Case 5:20-cv-10829-JEL-APP ECF No. 98-4 filed 06/05/20 PageID.3486 Page 67 of 70
Exhibit F
March 22, 2020 John Sandweg Article in The Atlantic

3/23/202C0 ase 5:20-cv-10829-JEL-APP ECFRNeleoa.se9IC8E-4's Nofnivleiodlen0t D6e/t0ai5ne/2es0- ThePAatlagneticID.3487 Page 68 of 70
IDEAS
I Used to Run ICE. We Need to Release the Nonviolent Detainees.
It’s the only way to protect detention facilities and the people in them from COVID-19.
MARCH 22, 2020
John Sandweg
Former acting director of Immigration and Customs Enforcement

CHRIS CARLSON / AP IMAGES
With more than 37,000 detainees closely con ned in facilities across the country, Immigration and Customs Enforcement (ICE) detention centers are extremely susceptible to outbreaks of infectious diseases. e design of these facilities requires inmates to remain in close contact with one another—the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus.
[ Read: What you need to know about the coronavirus ]

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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As the former Acting Director of ICE under President Obama, I know that preventing the virus from being introduced into these facilities is impossible. is week, the Trump administration announced that, in light of its concern that the virus could be introduced into detention centers, it would shift its enforcement operations to focus only on criminals and dangerous individuals. is means that the agency will arrest and place in detention only those undocumented immigrants who have serious criminal convictions. ose without a criminal record will be allowed to stay at home as they go through the deportation process. is is a necessary and crucial rst step, but the administration must do more: It must release the thousands of nonviolent, low- ight-risk detainees currently in ICE custody.

ICE is fortunate that the threat posed by these detention centers can be mitigated rather easily. By releasing from custody the thousands of detainees who pose no threat to public safety and do not constitute an unmanageable ight risk, ICE can reduce the overcrowding of its detention centers, and thus make them safer, while also putting fewer people at risk.

is doesn’t mean that dangerous criminals will be walking the streets. ose who threaten Americans’ safety can and must continue to be detained. However, the immigration detention system is not designed to detain only those who have committed serious crimes or pose a signi cant ight risk. In fact, only a small percentage of those in ICE detention have been convicted of a violent crime. Many have never even been charged with a criminal oﬀense. ICE can quickly reduce the detained population without endangering our communities.

[ Read: How Trump radicalized ICE ]

e large-scale release of detainees doesn’t mean that undocumented immigrants should get a free pass either. ose who are released can and should continue to go through the deportation process. ICE can employ electronic monitoring and other tools to ensure their appearance at mandated hearings and remove them from the country when appropriate.

When an outbreak of COVID-19 occurs in an ICE facility, the detainees won’t be the only ones at risk. An outbreak will expose the hundreds of ICE agents and oﬃcers, medical personnel, contract workers, and others who work in these facilities to the virus. Once exposed, many of them will unknowingly take the virus

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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home to their family and community. Moreover, once the virus tears through a detention center, crucial and limited medical resources will need to be diverted to treat those infected. ICE can, and must, reduce the risk it poses to so many people, and the most eﬀective way to do so is to drastically reduce the number of people it is currently holding.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3490 Page 1 of 7
Exhibit 4
Declaration of Aaron Haier dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3491 Page 2 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

DECLARATION OF AARON E. HAIER IN SUPPORT OF PLAINTIFFS’ MOTION FOR A
TEMPORARY RESTRAINING ORDER

Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3492 Page 3 of 7
I, Aaron E. Haier, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Aaron E. Haier. I am over the age of 18 and I am competent to make this declaration.
2. I am a Law Clerk at the New York office of Paul, Weiss, Rifkind, Wharton & Garrison LLP, working under the supervision of counsel admitted to, among other jurisdictions, the New York State bar.
3. I respectfully submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order. The purpose of this Declaration is to explain the analysis I undertook of the daily housing reports (ICE000416–756) that Defendants produced in this action.
4. The daily housing reports contain data for the period covering April 15, 2020 to May 15, 2020. It includes columns showing the full name of each detainee housed at Calhoun County Correctional Facility (“Calhoun”), their booking ID number, as well as their race, sex, section (or “pod”), and bed assignment.
5. To analyze these daily housing reports, I first transferred the data from the documents Defendants produced to an Excel workbook.
6. Using Excel, I generated a pivot table that shows in which pods the detainees were housed and when they were housed in each particular pod.
2

Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3493 Page 4 of 7
7. Based on that data, I created another table that showed for how many weeks each individual detainee was housed in a particular pod.
8. From these tables, I identified 18 individuals who did not properly remain in a single quarantine area for a full 14 days before being transferred to other areas of the facility.1
9. I also identified 20 individuals who, upon arriving at Calhoun, were placed in Pod R prior to being housed in one of the designated quarantine areas. The data suggest Pod R may be an intake area for the facility, but it is not only used for intake and is not a designated quarantine area. In addition to temporarily housing newcomers to the facility, Pod R often appears to house longer-term inmates as well. The data show many instances of current inmates being transferred to and from Pod R, originating from and moving to both designated quarantine areas and non-quarantine areas of the facility.
10. I was also able to identify 39 individuals who were transferred out of a quarantine area after 14 days, despite new arrivals to the facility being placed in that same quarantine area during that time.
1 According to Defendants, Pods A and B are used as high-risk quarantine areas, and pods M, P, J and K are being used as low-risk quarantine areas. Defs.’ Supp. Resp. to Pl.’s Interrogatory No. 2.
3

Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3494 Page 5 of 7
11. There were also four (4) individuals who moved out of quarantine after 14 days, despite another individual being transferred into their cell from another quarantine area during that time.
12. Two (2) individuals appeared to be moved from non-quarantine areas into quarantine areas and then back out to non-quarantine areas within a single week.
13. Detainees were transferred between pods at least 250 times between April 15 and May 15, 2020.
14. The daily housing reports also show where Plaintiffs have been housed for the month-long period for which we have data.
15. Plaintiff Waad Barash was housed in Pod C from April 15, 2020 through May 15, 2020. Through that time, Pod C housed between 49 and 56 people.
16. Plaintiff Leonard Victor Baroi was housed in Pod B, a high-risk quarantine area, from April 15, 2020 through May 13, 2020. Throughout that time, Pod B housed between 46 and 55 people. From May 14, 2020 through May 15, 2020, Mr. Baroi was in Pod S. Throughout that time, Pod S housed between 22 and 30 people.
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17. Plaintiff Lenche Krcoska was housed in Pod L from April 15, 2020 through May 15, 2020. Throughout that time, Pod L housed between 16 and 23 people.
18. Plaintiff Yohandry Ley-Santana was housed in Pod D from April 15, 2020 through May 15, 2020. Throughout that time, Pod D housed between 44 and 53 people.
19. Plaintiff Sergio Perez Pavon was housed in Pod H from April 15, 2020 through May 15, 2020. Throughout that time, Pod H housed between 21 and 32 people.
20. Plaintiff Johanna Whernman was housed in Pod L from April 15, 2020 through April 23, 2020. Throughout that time, Pod L housed between 18 and 23 people. Ms. Whernman was then housed in Pod G from April 24, 2020 through May 15, 2020. Throughout that time, Pod G housed between 30 and 32 people.
21. Plaintiff William Whernman was housed in Pod B, a high-risk quarantine area, from April 15, 2020 through May 13, 2020. Throughout that time, Pod B housed between 46 and 55 people. From May 14, 2020 through May 15, 2020, Mr. Whernman was in Pod S. Throughout that time, Pod S housed between 22 and 30 people.
5

Case 5:20-cv-10829-JEL-APP ECF No. 98-5 filed 06/05/20 PageID.3496 Page 7 of 7
22. Should the Court desire, Plaintiffs can provide an Excel document containing the relevant data. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 1st day of June 2020 in Jersey City, New Jersey. /s/ Aaron E. Haier
Aaron E. Haier Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Ave. of the Americas New York, NY 10019 Tel: (212) 373-3900 Fax: (212)757-3990
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Case 5:20-cv-10829-JEL-APP ECF No. 98-6 filed 06/05/20 PageID.3497 Page 1 of 3
Exhibit 5
Declaration of Sam Barash dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-6 filed 06/05/20 PageID.3498 Page 2 of 3

DECLARATION OF SAM BARASH

I, Sam Barash, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.

• My name is Sam Barash. I make these statements based upon my personal knowledge.

• My brother is Waad Barash, a 56-year-old Iraqi national who has been detained at Calhoun County Correctional Center ("Calhoun") in Battle Creek, Michigan since January 2020. Our family, including Waad and myself, arrived in the United States from Iraq in 1974 as lawful permanent residents. Waad was ten years old at the time of arrival. He has lived in the United States ever since. My mother, myself, and several of my siblings are now United States citizens.

• In 2018, United States Immigration and Customs Enforcement ("ICE") placed Waad into removal proceedings. In January 2020, ICE arrested and detia ned Waad as he was leaving his home. Waad's initial hearing date before the Immigration Court has been postponed until July 2020.

• Waad has been convicted of several non-violent offenses, though none since 2014, when he was sentenced to 30 days in jail for driving under the influence.

• Waad

when he arrived at Calhoun. Waad also

day for the past 10 years.

Prior to being detained, he smoked a pack a

• In detention, Waad has not received any further treatment or follow up testing for medical conditions. In light of
the COVID-19 pandemic, Waad has been given a single mask, however, this mask has not been replaced since. He has also reported that in both his cell and the common area he is often within six feet of other detainees.

• Due to his inability to socially distance in Calhoun, his various medical conditions, and the inadequate medical care at Calhoun, Waad does not believe the detention center can keep him safe and adequately protect him from contracting COVID-19.

• If released, Waad would be able to self-quarantine at his cousin's home in Sterling Heights, Michigan.

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Case 5:20-cv-10829-JEL-APP ECF No. 98-7 filed 06/05/20 PageID.3500 Page 1 of 4
Exhibit 6
Declaration of Leonard Baroi dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-7 filed 06/05/20 PageID.3501 Page 2 of 4
DECLARATION OF LEONARD BAROI
I, Leonard Baroi, certify under penalty of perjury that the following statement is true and correct
pursuant to 28 U.S.C. §1746.
1. My name is Leonard Baroi. I make these statements based upon my personal knowledge.
2. I am 23 years old. I was born in Bangladesh, and I came to the United States on February 7, 2014 as a tourist with my family. I arrived in New York, and settled in Michigan. My parents both live in the United States. After arriving, At the time, I was under 18, and I was being considered under my mother’s application. In June 2019, there was a hearing and I was told that I had to submit my own application because I was over the age of 21. My mother and father have a final court date hearing on January 26, 2023.
3. I have been detained by ICE at Calhoun County Correctional Center (“Calhoun”) since March 3, 2020. I have been given a final order of removal, but I have no date of removal since Bangladesh is not accepting any deportees from the United States during the COVID-19 pandemic. Additionally, there are no direct flights to Bangladesh, and flights must go through other countries such as the United Arab Emirates or Turkey. Those countries are also shut down during the pandemic and are not accepting flights. ICE told my fiancée that no flights have been scheduled for me, and no formal arrangements have been made for my departure.
4. I was convicted of assault and battery in December 2019 in Ottawa, Michigan. I pleaded no contest and was sentenced to 90 days’ incarceration, of which I only served 75. Immediately after my release from prison, ICE agents detained me.
5. I have been diagnosed with
I used to smoke one or two cigarettes daily for two years prior to my arrest.
6. I was initially housed in B Pod, and I shared a cell with another detainee. I was unable to maintain a distance of six feet from him and we slept in bunk beds. When we were allowed into the main room of B Pod, I was also unable to maintain a six foot distance from other detainees.
7. Calhoun staff only provided one bar of soap in the communal sink for the entire B Pod at a time. The bar of soap would be replaced once it had run out.
8. I was moved to three different cells, with three different cellmates, within one month of arriving at Calhoun. Detainees asked the staff the reason that they were being moved, but

Case 5:20-cv-10829-JEL-APP ECF No. 98-7 filed 06/05/20 PageID.3502 Page 3 of 4
the staff did not provide us with a reason. Staff told us that detainees are safe at Calhoun and that we would not be safe outside of the facility. We have not been told whether anyone at Calhoun has tested positive for COVID-19.
9. On May 13, I was moved from B Pod, which had individual cells housing two people each, to S Pod at Calhoun, which is a converted basketball court. S Pod is approximately fifty feet long and fifty feet wide. Approximately thirty detainees live in the room, with twenty-eight bunk beds and two people sleeping on the floor on mattresses. Each bed is approximately three feet from the next bed.
10. Detainees typically eat at any one of four tables. Detainees sit so close to one another that our arms touch while we are eating. Each table is suited for five people, but Calhoun staff packs eight people around each table. Detainees must also eat off of reusable trays.
11. All detainees shared only two bathrooms, two showers, and one long sink.
12. On Thursday, May 21, there was a sign-up sheet brought into S Pod and whoever voluntarily wanted to get tested could sign up there. Around 15 people signed up to get tested. On Saturday, May 23, a nurse from the jail came and tested those detainees who had signed up. On Saturday, May 23, I was tested for COVID-19. I do not know how I will receive my results or when I will receive my results.
13. On May 25, I was moved back to B Pod with a new cellmate. All of the detainees who had been in S Pod were moved to B Pod along with around twelve people who had been in the quarantine unit. B Pod was very dirty when we moved back, and the ventilation system does not work.
14. In B Pod, foam hand sanitizer is provided in each bathroom, which is then replaced when empty. Each detainee is also provided with a bar of soap in their individual cell. The pod contains four showers and two bathrooms.
15. In B Pod, detainees eat our meals off of reusable food trays. When waiting to get our food, we line up for the food and stand in close proximity to each other.
16. In B Pod, there are two designated detainees, known as trustees, who clean all common areas on a daily basis during lockdowns. Detainees also clean beds and their own rooms. Everyone uses the same mop and bucket to clean.
17. On May 31, I was moved back to S Pod. The capacity in S Pod is for 28 people, and there are currently 35 people in S Pod. 7 detainees are sleeping on the floor. There is no social distancing at all here.
18. Three weeks ago, detainees were given two masks. We were told that we do not have to wear them when we are in the pod, but that we must wear them when leaving the pod. The staff does not wear masks and neither detainees nor staff have gloves.

Case 5:20-cv-10829-JEL-APP ECF No. 98-7 filed 06/05/20 PageID.3503 Page 4 of 4
19. I hear a lot of people coughing constantly, and I can hear correctional officers coughing during the night. I have also noticed new deputies being frequently rotated into the facility.
20. If released, I will be able to self-quarantine at my parents’ house in Holland, Michigan. Either my parents or my fiancée can drive to Calhoun and pick me up if I am released.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 1st day of June 2020, in Battle Creek, Michigan. /s/_Leonard Baroi_ Leonard Baroi

Case 5:20-cv-10829-JEL-APP ECF No. 98-8 filed 06/05/20 PageID.3504 Page 1 of 5
Exhibit 7
Declaration of Jonathan Golden dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-8 filed 06/05/20 PageID.3505 Page 2 of 5

Case 5:20-cv-10829-JEL-APP ECF No. 98-8 filed 06/05/20 PageID.3506 Page 3 of 5

Case 5:20-cv-10829-JEL-APP ECF No. 98-8 filed 06/05/20 PageID.3507 Page 4 of 5
Exhibit A
Supplemental Declaration of Marta Pavon Hernandez dated May 28, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-8 filed 06/05/20 PageID.3508 Page 5 of 5

Case 5:20-cv-10829-JEL-APP ECF No. 98-9 filed 06/05/20 PageID.3509 Page 1 of 4
Exhibit 8
Declaration of Lenche Krcoska dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-9 filed 06/05/20 PageID.3510 Page 2 of 4

DECLARATION OF LENCHE KRCOSKA IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER
I, Lenche Krcoska, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.

1. My name is Lenche Krcoska and I am a 52-year-old Macedonian citizen. On or around September 15, 2019, I tried to enter the United States at the Detroit/Windsor land crossing using another person’s passport, but I was caught and ultimately charged with Misuse of Passport. On December 12, 2019, I pleaded guilty and was sentenced to time served and one year of non-reporting supervision. I have no other criminal history.

2. After being arrested, I was detained in Calhoun County Correctional Center (“Calhoun”) in Battle Creek, Michigan, for one night. I was then transferred to Sanilac County Jail. After pleading guilty to the above charge, I remained in Sanilac County Jail until I was transferred back to Calhoun on January 9, 2020, where I have been ever since. I am currently awaiting adjudication of my asylum claim. My next hearing is scheduled for June 11, 2020.

3. I when I was detained. Since being in Calhoun,

I disclosed it to ICE

Due to my medical conditions and my age, I am at high risk of complications from COVD-19. 4. I legally changed my name from Lenche Krcoska to Elena Treneska due to death threats I received while in Macedonia. My medical
1

Case 5:20-cv-10829-JEL-APP ECF No. 98-9 filed 06/05/20 PageID.3511 Page 3 of 4

documents reflect my new name. However,

in

the United States use my birth name, Lenche Krcoska.

5. In Calhoun, the guards have given us a mask to wear when we go to medical appointment or go outside. (We are allowed to go outside in a small yard about once every two weeks for fresh air.) The masks are thin and are made of a material that is something between paper and cloth. In the last three weeks, I have only been given two masks. I can’t ask for more, because I do not speak English.

6. The regular guards that are in Calhoun every day rarely wear masks. They also do not always wear gloves. When dispensing medication, guards use the same gloves for every detainee and do not consistently use personal protective equipment. The officers that only come to Calhoun from time to time do regularly wear masks.

7. I am housed in the L Unit. I share a cell with five other detainees. The beds in the cell are approximately three feet apart. It is not possible to socially distance in our cells. The jail provides liquid soap for the detainees, but it sometimes runs out and then we have no soap for two or three days. They also give us soap and shampoo for personal hygiene, but only if we have more than $15 in our commissary account. The detainees clean the bathrooms, and we are given one bucket with water to detergent a day. Sometimes we have to use the same water to clean the bathrooms as we used to clean the dining area. Detainees continue to eat meals at communal tables, sitting less than six feet apart. Guards do not consistently wear masks while on duty.

8. Since arriving at Calhoun, I have not been offered COVID-19 testing.

9. If released, I will stay with my son—a legal permanent resident—at his home in Illinois. I would be able to isolate or quarantine, if necessary, in the lower level of the house, which has a separate entrance, kitchen, and bathroom. I will also have access to personal protective equipment, cleaning supplies, and sanitation products.

2

Case 5:20-cv-10829-JEL-APP ECF No. 98-9 filed 06/05/20 PageID.3512 Page 4 of 4
I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 1st day of June, 2020, in Battle Creek, Calhoun County, Michigan.
__/s/ Lenche Krcoska___
Lenche Krcoska
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Case 5:20-cv-10829-JEL-APP ECF No. 98-10 filed 06/05/20 PageID.3513 Page 1 of 4
Exhibit 9
Declaration of Johandry Ley Santana dated June 1, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-10 filed 06/05/20 PageID.3514 Page 2 of 4

I, Jaima Ley Santana, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.

1. My name is Jaima Ley Santana. I make these statements based upon my personal knowledge.

2. My brother, Yohandry Ley Santana, is a 33-year-old Cuban national.

He came to the United States

in June 2019, and was

immediately detained by Immigration and Customs Enforcement

(“ICE”) and transferred to Calhoun County Correctional Center

(“Calhoun”), where he has remained since.

3. Yohandry has suffered from

.

4.
5.
Although he has requested these medications while in detention, he has not received either. 6. At Calhoun, Yohandry is currently in Pod D with 56 other detainees. It is impossible for Yohandry to practice social distancing in this confined area. Although the facility provided him with a protective mask, he is unable to wear it because his asthma makes it too difficult to breathe when his mouth and nose are covered. According to Yohandry, the staff at Calhoun does not typically wear masks, and they only wear gloves when they come into contact with the detainees. In his pod, the detainees are responsible for cleaning the common areas.
1

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2
7. Yohandry has no criminal history.
8. If Yohandry is released from ICE custody, he will be able to stay with me and my family in Tampa Bay, Florida. I understand that the American Civil Liberties Union (“ACLU”) of Michigan will coordinate Yohandry’s travel to Tampa Bay. At my house, Yohandry will be able to quarantine or isolate as necessary.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 1st day of June, 2020
/s/ Jaima Ley Santana Jaima Ley Santana

Case 5:20-cv-10829-JEL-APP ECF No. 98-10 filed 06/05/20 PageID.3516 Page 4 of 4
3
ATTORNEY DECLARATION
Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to practice in the State of Michigan and the District of Columbia. On June 1, 2020, I personally spoke with Jaima Ley Santana and read this declaration to him during a phone call. Jaima Ley Santana told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.
I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/ Joe Granzotto Joe Granzotto Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, D.C. 20006-1047 (202) 223-7375 jgranzotto@paulweiss.com

Case 5:20-cv-10829-JEL-APP ECF No. 98-11 filed 06/05/20 PageID.3517 Page 1 of 3
Exhibit 10
Declaration of Johanna Whernman dated May 28, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-11 filed 06/05/20 PageID.3518 Page 2 of 3
DECLARATION OF JOHANNA WHERNMAN IN FURTHER SUPPORT OF PETITIONER-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
I, Johanna Whernman, hereby declare: I make this declaration based upon my own personal knowledge and if called to testify I could and would do so competently.
1. I am a 57-year-old Swedish national who has been detained at Calhoun County Detention Facility (“Calhoun”) since February 19, 2020.
2. I am extremely concerned about exposure to COVID-19 due to a number of serious, pre-existing medical issues and my age.
3. Other than being mistakenly arrested for theft of a rental car in 2017 when I was previously in the United States, I have no prior criminal history.
4. I have been in the United States since November 2019. I was detained at the Canadian border and, thus, am not eligible for bond.
5. If released, I would stay with my husband, a United States citizen, in Round Lake Beach, Illinois, where I could get medical treatment for my conditions while maintaining a safe distance from others and/or quarantining as necessary.

Case 5:20-cv-10829-JEL-APP ECF No. 98-11 filed 06/05/20 PageID.3519 Page 3 of 3 2
I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 28th day of May 2020, in Battle Creek, Michigan.
/s/ Johanna Whernman Johanna Whernman* *consent for signing given telephonically

Case 5:20-cv-10829-JEL-APP ECF No. 98-12 filed 06/05/20 PageID.3520 Page 1 of 3
Exhibit 11
Declaration of William Whernman dated May 28, 2020

Case 5:20-cv-10829-JEL-APP ECF No. 98-12 filed 06/05/20 PageID.3521 Page 2 of 3
DECLARATION OF WILLIAM WHERNMAN IN FURTHER SUPPORT OF PETITIONER-PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER I, William Whernman, hereby declare: I make this declaration based upon my own personal knowledge and if called to testify I could and would do so competently.
1. I am a 22-year-old Swedish national who has been detained at Calhoun County Detention Facility (“Calhoun”) since February 20, 2020.
2. I am extremely concerned about exposure to COVID-19 due to a number of serious, pre-existing medical issues.
3. I have no prior criminal history. 4. I have been in the United States since November 2019. I was
detained at the Canadian border and, thus, am not eligible for bond. 5. If released, I would stay with my stepfather, a United States citizen, in
Round Lake Beach, Illinois, where I could get medical treatment for my conditions while maintaining a safe distance from others and/or quarantining as necessary. I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.

Case 5:20-cv-10829-JEL-APP ECF No. 98-12 filed 06/05/20 PageID.3522 Page 3 of 3 2
Executed on the 28th day of May 2020, in Battle Creek, Michigan.
/s/ William Whernman William Whernman* *consent for signing given telephonically

 
 Case 5:20-cv-10829-JEL-APP ECF No. 101 filed 06/10/20 PageID.3566 Page 1 of 26

Janet Malam, et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Petitioner-Plaintiff,

Civil No. 20-10829

v. Rebecca Adducci,

Honorable Judith E. Levy Mag. Judge Anthony P. Patti

Respondent-Defendant.

_________________________________________/

RESPONDENTS’ RESPONSE IN OPPOSITION TO PETITIONERS’ FOURTH MOTION FOR TEMPORARY RESTRAINING ORDER

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I. INTRODUCTION Petitioners’ fourth motion for injunctive relief1 presents similar issues already addressed by the Court, but in a changing landscape. The premise of the Petitioners’ argument is not that they have been harmed, but that they are likely to be harmed, if not released from lawful immigration detention at Calhoun County Correctional Center. The fear is based on the alleged possibility of a “tinderbox scenario,” where there could be a rapid and uncontrolled outbreak of COVID-19 at Calhoun based on the nature of a congregate setting. Petitioners cite to outbreaks that have occurred in Michigan and other states, but ignore the many congregate settings where it has not occurred, despite being months into a pandemic and Michigan having moved past the peak of its cases. The facts are that Calhoun has not experienced an outbreak, has implemented significant precautions to reduce the risk of exposure, and having recently tested roughly a third of its population, only 2% tested positive, and those were asymptomatic cases. In the time that the state of Michigan has seen nearly 65,000 confirmed cases, Calhoun has seen only 5. Petitioners cannot continue to ignore the data in favor of unrealized fears. Regardless of whether Petitioners and their experts assert that as a matter of policy Respondents should suspend lawful immigration
1 Although, Petitioners filed a motion for a temporary restraining order, it should be considered a motion for preliminary injunction because Respondents had notice of the motion and an opportunity to respond. See Fed. R. Civ. P. 65(a), (b).
2

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detention to protect detainees, what is the best policy is not at issue. The only thing at issue is whether Respondents have violated Petitioners’ constitutional rights. The answer is no. The Sixth Circuit recently held in Wilson v. Williams that precautions similar to those taken at Calhoun, are reasonable and preclude a finding of deliberate indifference. Accordingly, Respondents oppose the entry of a preliminary injunction for the release of the newly added Petitioners Waad Barash, Leonard Baroi, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, and William Whernman.
II. BACKGROUND A. Petitioners are lawfully detained pending immigration
proceedings. Waad Barash – Barash is a 55-year old citizen of Iraq. (McClain, Ex. 1, ¶ 3). He is subject to removal and detained under 8 U.S.C. § 1226(c). Id. at ¶ 13. Barash has failed to report to ICE as required, failed to appear for a criminal proceeding, and has a significant criminal history. Id. at ¶ 10, 12, 15. He receives treatment for hypertension and diabetes. Id. at ¶ 16. He also has inactive tuberculosis that does not require treatment. Id. He is housed in a unit that is under capacity. Id. at ¶ 17. Leonard Baroi – Baroi is a 23-year old citizen of Bangladesh. (Labadini, Ex. 2, ¶ 5). He is subject to a final order of removal and is held in mandatory detention under 8 U.S.C. § 1231(a)(2). Id. at ¶ 3. He was denied bond and found to be a danger based on a conviction for domestic violence for slapping, choking, and
3

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hitting the victim with a pistol. Id. at ¶¶ 8, 10, 13. Baroi did not report any medical conditions to Calhoun and did not receive medical treatment. Id. at ¶ 17. Baroi has been transferred to Louisiana to be staged for imminent removal. Id. at ¶ 19. Lenche Krcoska – Krcoska is a 52-year old citizen of North Macedonia. (Wandyg, Ex. 3, ¶ 4). She is held under 8 U.S.C. § 1225(b)(2)(A). Id. at ¶ 3. Krcoska currently receives treatment, when she accepts it, for hypertension and rheumatoid arthritis. Id. at ¶ 12-13. She is housed in a unit that is significantly under capacity. Id. at ¶ 15. Sergio Perez Pavon – Paron is a 36-year old citizen of Mexico. (Hackett, Ex. 4, ¶ 4). He is subject to removal and is held under 8 U.S.C. § 1231(a). He was found to be a danger and denied bond based on his convictions for fraud and domestic violence against his wife, whom he allegedly has assaulted multiple times. Id. at ¶¶ 9, 11. Paron receives treatment for diabetes. Id. at ¶ 12. Yohandry Ley Santana – Santana is a 33-year old citizen of Cuba. (Mitchell, Ex. 5, ¶ 4). He is subject to a final order of removal and held under 8 U.S.C. § 1231. Id. at ¶ 12. Prior to being ordered removed, Santana was found to be a flight risk and denied bond. Id. at ¶ 10. He has not reported any medical conditions and has not sought treatment for asthma, but has been treated for a sore throat and back pain. Id. at ¶ 14. Santana is housed in a unit that is under capacity and he has one roommate. Id. at ¶ 15.
4

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Johanna Whernman – Johanna Whernman is a 57-year old citizen of Sweden. (Ankenbauer I, Ex. 6, ¶ 3). She is subject to removal and is held under 8 U.S.C. § 1187(c)(2)(E), pending her removal scheduled for June 22, 2020. Id. at ¶ 7. Johanna Whernman is being treated for asthma. Id. at ¶ 8. She has her own room. Id. at ¶ 9. William Whernman – William Whernman is a 22-year old citizen of Sweden. (Ankenbauer II, Ex. 7, ¶ 3). He is subject to removal and is held under 8 U.S.C. § 1187(c)(2)(E), pending his removal scheduled for June 22, 2020. Id. at ¶ 7. William Whernman is being treated for asthma. Id. at ¶ 8. He has his own room. Id. at ¶ 9.
B. Calhoun implemented significant precautions to reduce detainees’ risk of exposure to COVID-19. 1. ICE guidance tracks recommendations of the CDC.
The measures implemented at Calhoun to address COVID-19 are based on guidance from the Center for Disease Control, billed as “the nation’s health protection agency.” See https://www.cdc.gov/about/organization/mission.htm. The mission of the CDC is to “save[] lives and protect[] people from health threats.” Id. One of the roles of the CDC is to “[d]etect[] and respond[] to new and emerging health threats.” Id. To meet its mission, the CDC relies on “well-resourced public health leaders and capabilities at national, state and local levels to protect Americans from health threats.” Id.
5

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ICE does not directly operate Calhoun. Calhoun has a contract to house ICE detainees that requires it to meet detention standards set forth in the contract and in guidance provided by ICE. (Jacobs, Ex. 8, ¶¶ 5, 9). The CDC issued recommendations specific to managing COVID-19 in the correctional and detention setting. (CDC Guidance, ECF No. 11-2). The guidance was designed to “ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors.” Id. at p. 1. As the CDC noted in bold print, “[t]he guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” Id.
Tracking the CDC recommendations, ICE created guidance in March 2020, which facilities like Calhoun are required to implement. See https://www.ice.gov/coronavirus. On April 10, 2020, ICE updated the guidance with additional precautions. (ICE PPR, ECF No. 52-7). In creating guidance, ICE “convened a working group between medical professionals, disease control specialists, detention experts, and field operators to identify additional enhanced steps to minimize the spread of the virus.” See https://www.ice.gov/coronavirus. Despite the nearly 2 million confirmed cases of COVID-19 in the United States, and nearly 65,000 confirmed cases in Michigan, Calhoun has had only 5 confirmed cases of COVID-19. (Jacobs, Ex. 8, ¶ 11).
6

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In addition to the guidance provided by ICE, Calhoun has its own COVID19 protocol. Id. at ¶ 10; ERP, ECF No. 52-9. Corizon Health, a national correctional healthcare provider, developed an emergency response plan (ERP) that was implemented at Calhoun on March 10, 2020. Id. at p.1. The ERP incorporates recommendations of the CDC, and the state and local health departments. Id. As detailed below, as the situation has evolved, so have the precautions taken at Calhoun, since the creation of the ERP in March 2020.
2. Precautions at Calhoun reduce the opportunity for introduction of COVID-19 to the detention facility.
Calhoun has implemented precautions that reduce the opportunity for introduction of COVID-19 to the facility, and those precautions have evolved over the course of the pandemic. Currently, all incoming detainees and inmates are quarantined for 14 days before entering the general population. (Jacobs, Ex. 8, ¶ 17). Everyone in quarantine is assessed for symptoms twice daily, including checking body temperature. Id. Detainees and inmates who do not exhibit symptoms during quarantine are assigned to the general population housing units. All detainees who exhibit symptoms, whether in quarantine or not, are evaluated, and if indicated, tested in accordance with CDC and Michigan Department of Health and Human Services guidance. Id. at ¶ 22. Of the five confirmed cases of COVID-19 at Calhoun, two of them were identified at intake and one of them was identified through contact tracing before reaching the general population. Id. at
7

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¶12, 14. Calhoun also recently made voluntary mass testing by the Michigan National Guard available to all detainees, inmates, and staff at Calhoun. Id. at ¶ 13. Of the 50 detainees, 47 inmates, and 16 staff members who chose to be tested, only two asymptomatic cases were identified. Id.
Calhoun’s success is due in part to its strict quarantine procedures. At intake, new arrivals to Calhoun immediately receive a mask and a medical screening. Id. at ¶ 16. Corizon designed the screening tool for the detention setting in accordance with recommendations of the CDC. Id.; CDC FAQ, Ex. 9. Detainees without symptoms or exposure are quarantined in a low-risk quarantine unit. (Jacobs, Ex. 8, ¶ 17). Detainees with potential exposure are quarantined in a high-risk quarantine unit. Id. Staff entering the high-risk quarantine units are required to wear an N95 mask, gloves, and a face shield. Id. at ¶ 18. Staff entering the low-risk quarantine units are required to wear masks. Id. All housing units are on separate ventilation systems. Id. at ¶ 19. Those who have symptoms compatible with COVID-19 are isolated and tested. Id. at ¶ 17.
While in quarantine, detainees and inmates are separated by entry date so that newer arrivals do not interact with the existing population. Id. The quarantine units are kept on lockdown, meaning those quarantined are restricted to their cells and are let out to common areas for a limited time in cohorts based on entry date. Id. This results in only small groups with similar entry dates being in the common
8

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areas of the housing unit at the same time, and the common areas are cleaned before the next group is let out. Id. Meals and medications are served to the cells during quarantine. Id.
Calhoun also screens all staff and vendors for symptoms, including checking body temperature, to assess for potential illness. Id. at ¶ 25. Staff that screens positive for potential illness are turned away and directed to see a physician. Id. Inperson social visitation has been suspended. Id. at ¶ 26. Calhoun limits professional visits to noncontact. Id.
3. Precautions at Calhoun improve hygiene to prevent exposure and spread of COVID-19.
Calhoun has taken significant steps to improve overall hygiene. Calhoun provides education to staff and detainees about the importance of hygiene and specific steps to improve hygiene. Id. at ¶ 27. Education is reinforced with signage, in English, Spanish, and Arabic, and with graphic depictions. Id. at 28. The signs are posted in all living areas and explain the signs and symptoms of the virus and precautions on how to avoid exposure. Id.
Detainees are provided with antibacterial soap, which is replenished upon request. Id. at ¶ 32; Baroi, ECF No. 98-7, ¶ 14 (“foam hand sanitizer is provided in each bathroom, which is then replaced when empty…[e]ach detainee is also provided with a bar of soap in their individual cell”). There are hand-washing stations in all areas of the housing units and within cells. (Jacobs, Ex. 8, ¶ 32).
9

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Calhoun has increased sanitation and cleans cells daily and common areas hourly. Id. at ¶ 29. Increased efforts include disinfecting door knobs, handles, tables, phone receivers, counters, and other commonly touched areas. (Disc. Resp., ECF No. 984, PageID.3480). Detainees are also provided with cleaning supplies that are effective against the human coronavirus and encouraged to do additional cleaning. (Jacobs, Ex. 8, ¶ 30). Staff at Calhoun have access to hygiene products and personal protective equipment. Id. at ¶ 33. Staff is required to wear a mask at intake and booking, and is encouraged to wear a mask at all times. Id. at ¶ 21. Detainees are provided with two surgical grade masks, which are replaced upon request. Id. at ¶ 20.
4. Calhoun has addressed social distancing. ICE has implemented significant steps to increase social distancing among staff and detainees. “ICE has released nearly 700 individuals after evaluating their immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns.” See https://www.ice.gov/coronavirus. ICE has “limited the intake of new detainees being introduced into the ICE detention system.” Id. Due to these measures, “ICE’s detained population has dropped by more than 4,000 individuals since March 1, 2020 with a more than 60 percent decrease in book-ins when compared to this time last year.” Id. There are specific measures implemented at Calhoun to increase social
10

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distancing. Calhoun is not overcrowded and currently houses 349 inmates and detainees, though it has a capacity to house 640. (Jacobs, Ex. 8, ¶ 34). None of the Petitioners named as part of this motion are in a housing unit that is at capacity. Detainees are educated on the need for social distancing and practices that reduce exposure. Id. at ¶ 35. In accordance with ICE Detained Docket Review guidance, ICE reviews detainees who are considered high risk under CDC guidelines to determine if continued detention is appropriate. Id. at ¶ 37.
III. STANDARD OF REVIEW “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (“a preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied ‘only in [the] limited circumstances’ which clearly demand it.”) (quotations omitted). “A district court must consider four factors in determining whether to issue a preliminary injunction: (1) whether the movant has a “strong” likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.” McPherson v. Michigan High Sch. Athletic Ass’n, Inc.,
11

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119 F.3d 453, 459 (6th Cir. 1997) (en banc). “As a general matter, the four considerations applicable to preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied.” Id.
IV. LAW AND ANALYSIS A. Petitioners cannot establish a likelihood of success on the merits.
1. Petitioners cannot establish deliberate indifference. To establish that Respondents were deliberately indifferent, Petitioners must establish both an objective and a subjective component. Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 835-38 (1994)). The objective component is satisfied by showing “absent reasonable precautions, an inmate is exposed to a substantial risk of serious harm.” Id. “But the objective component is not met by proof of such a substantial risk of serious harm alone”; it “further ‘requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency’—that is, it ‘is not one that today’s society chooses to tolerate.’” See Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 56869 (6th Cir. 2013) (citing Helling v. McKinney, 509 U.S. 25, 36 (1993)). The subjective component requires Petitioners to show that (1) “the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner,” (2) the official “did in fact draw the inference,” and (3) the official “then
12

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disregarded that risk.” Id. (citations omitted). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence.” Id. at 915-16. Petitioners cannot establish either component.
a). Petitioners do not establish the objective component. i. Barnoi does not have a substantial risk of serious harm.
Barnoi cannot establish that he has a substantial risk of serious harm based on primary hypertension and a history of smoking 1-2 cigarettes a day for 2 years. It is by now undisputed that the CDC does not recognize primary hypertension alone as a high-risk factor for a severe outcome from COVID-19. (CDC FAQ, Ex. 9). While hypertension is a common comorbidity of those hospitalized from COVID-19, given its general prevalence among adults, and that it increases with age, the correlation does not suggest that primary hypertension causes a worse outcome. (Hypertension and COVID-19, Ex. 10)2. Nor does the CDC recognize a “history of smoking” as a high-risk factor. (CDC High-Risk, ECF No. 52-10). Even if a significant history of smoking were a risk factor, Barnoi claims that he
2 A recent European study suggested primary hypertension results in a higher death rate, but it pointed out that another study published in the Journal of the American Medicine Association on Cardiology found that when controlling for confounding factors, hypertension is not an independent risk factor for COVID-19. See https://academic.oup.com/eurheartj/article/41/22/2058/5851436. The article also points out that the results in the study “should be considered as exploratory and interpreted cautiously.” Id.
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smoked 1 or 2 cigarettes for 2 years prior to detention, a short time relative to most smokers. Thus, he fails to establish that he is at a substantial risk of serious harm from COVID-19.
ii. Petitioner has not established that society will not tolerate the risk of exposure to COVID-19.
Even if Petitioners established that despite the reasonable precautions taken at Calhoun they still have a substantial risk of serious harm, they must also address the societal prong of the objective component. The Supreme Court held in Helling that, “with respect to the objective factor, determining whether [the plaintiff’s] conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm.” Helling, 509 U.S. at 36. “It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. (emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Id.
Petitioners do not address this issue in their motion even though it appears that society is prepared to tolerate the risk that some individuals, regardless of age and underlying health condition, may be exposed to COVID-19. Petitioners’ risk of exposure if they are released is not zero. The pandemic is likely to last months, and perhaps years, longer. Nonetheless, the stay-at-home order in Michigan has been
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lifted, retail sale can resume, bars and restaurants are reopening, pools and day camps can open, all despite the lack of a vaccine or mass testing. See https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530620--,00.html. The risk of contracting COVID-19 among the general public is still high, and it will likely ebb and flow during the pandemic. There are no special restrictions for those of advanced age or those with underlying medical conditions known to increase the risk of a severe outcome from COVID-19.
Against this backdrop, Petitioners cannot establish that their potential exposure to COVID-19 at Calhoun, even with their alleged medical conditions, is a risk that society is not willing to tolerate for “anyone,” where society is prepared to tolerate the risk in many sectors. Helling, 509 U.S. at 36.
b). Petitioners cannot establish the subjective component. Calhoun has implemented reasonable measures to protect detainees from exposure to COVID-19 that track CDC guidance for detention settings. (Jacobs, Ex. 8; CDC Guidelines, ECF No. 11-2; CDC FAQ, Ex. 9). Calhoun has a strict quarantine procedure that not only requires all incoming detainees and inmates to be quarantined, but also separates them based on their individual level of risk of exposure. (Jacobs, Ex. 8, ¶ 17). Regardless of the level of risk, all detainees and inmates are screened for symptoms at intake, and then twice daily for 14 days. Id. There are no symptomatic cases that have made it to the general population. Id. at
15

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¶ 12-14. Calhoun has employed a number of measures to decrease the chance that COVID-19 would spread if it does reach the general population. Calhoun issues all detainees masks and antibacterial soap. Id. at ¶ 20, 32. All housing units have increased sanitation. Id. at ¶ 29. Staff and detainees are reminded of the need to use these precautions with education and signage in all housing units. Id. at ¶ 27-28.
Petitioners complain primarily that despite these measures, because they cannot achieve six feet of social distance at all times, the precautions are not enough to “ensure” safety. (Mot., ECF No. 98, PageID.3390). However, as the Sixth Circuit recently held, Calhoun does not have to take every possible precaution to ensure safety to avoid a finding of deliberate indifference. See Wilson v. Williams, --- F.3d ----, 2020 WL 3056217, *8 (6th Cir. June 9, 2020). In Wilson, the district court entered a preliminary injunction in favor of a subclass of medically vulnerable inmates at a federal prison, finding the petitioners were likely to succeed on their claim of deliberate indifference. Id. at *3. The precautions taken at the prison at issue in Wilson are similar to the precautions at Calhoun. Id. at *2 (noting the prison suspended social visitation, implemented a 14-day quarantine procedure, isolated symptomatic prisoners, used a screening tool and temperature check on incoming prisoners, enhanced cleaning, provided education, provided PPE, and made testing available based on applicable guidelines). The court reversed entry of the injunction, finding the respondent had “responded
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reasonably” to the risk of the spread of COVID-19. Id. at *7. In Wilson, the court held that even though the respondent was unsuccessful
in averting the harm from COVID-19 (59 inmates and 46 staff tested positive, and 6 inmates died), because it nonetheless “responded reasonably to the risk” it was not “deliberately indifferent.” Id. at *2, 7-8 (citing Wooler v. Hickman Cty., Ky., 377 F. App’x 502, 503 (6th Cir. 2010) (court held “consistent efforts to reduce [the] risk” of contagion of an infectious skin disease precluded “a finding of deliberate indifference”)). The Wilson court held that, “an official will likely not be found to be deliberately indifferent if they took some action, even if that action was inadequate.” Id. at *10 (citing Richmond v. Huq, 885 F.3d 928, 939 (6th Cir. 2018)).
The Wilson court also cited recent decisions from the Eleventh and Fifth Circuits that likewise reversed the entry of a preliminary injunction where the district court found deliberate indifference on the basis of allegedly inadequate precautions. Id. at *9. In Valentine, the Fifth Circuit evaluated a preliminary injunction imposing conditions to address COVID-19 at a geriatric prison with predominantly elderly or ill inmates, who are all high-risk. Valentine v. Collier, --F.3d ---, 2020 WL 1934431, at *1 (5th Cir. 2020). The court held that the district court improperly required the defendant to undertake measures beyond those required by the CDC. Id. at *4. Further, the court held that even if the plaintiffs
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established that they were at a substantial risk of harm despite the measures taken, Farmer required them to show that the defendant “subjectively believe[d] the measures they are taking are inadequate.” Id. (citing Farmer, 511 U.S. at 846). The court held the facility’s measures “informed by guidance from the CDC and medical professionals,” did not establish deliberate indifference, even if the district court “might do things differently.” Id.
Similarly, in Swain v. Junior, --- F.3d ---, 2020 WL 2161317, at *4 (11th Cir. 2020), the Eleventh Circuit held that the district court erred in finding deliberate indifference where the defendant could not implement strict social distancing. The Swain court also held that the district court erred in finding deliberate indifference given that the defendant “implemented many measures to curb the spread of the virus” and that while it was not possible to “implement social distancing measures effectively” at the “current population level,” the district court “cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate.” Id. (citing Valentine).
In this case, Calhoun took reasonable measures, like the facilities in Wilson, Valentine, and Swain, even if six-feet of social distancing is not possible at all times. Also, the alleged occasional delay in refilling soap does not establish deliberate indifference. See Wilson, 2020 WL 3056217, at *3 (inmates alleged “insufficient supplies” and that they “frequently run out of soap.”). Nor does
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declining to test a detainee when they demand, or when they refuse, create deliberate indifference. Id. at *8 (noting that “[a]n inmate’s ‘disagreement with the testing and treatment he has received’ does not create a constitutional violation”) (citation omitted).
Calhoun’s precautions track recommendations for detention facilities from the CDC, the nation’s health protection agency. The guidance provided by the CDC is evidence of presumptively reasonable measures, because the CDC is tasked with responding to “emerging health threats” in order to save lives and protect people. See Bragdon v. Abbott, 524 U.S. 624, 650 (1998) (“[T]he views of public health authorities, such as the…CDC…are of special weight and authority.”); and DeGidio v. Pung, 920 F.2d 525, 530, n.11 (8th Cir. 1990) (The “CDC is known for its expertise in controlling infectious diseases such as tuberculosis…[t]he ATS/CDC guidelines on the surveillance, control and treatment of tuberculosis are considered authoritative.”). Thus, Calhoun took significant action by implementing the measures recommended by the CDC, precluding a finding of deliberate indifference. Wilson, 2020 WL 3056217, *10 See also Farmer, 511 U.S. at 845 (“[P]rison officials who act reasonably cannot be found liable” for deliberate indifference.).
This Court has previously found deliberate indifference by determining Calhoun’s precautions are unreasonable when measured against what is possible if
19

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released. The Petitioners are lawfully detained and the reasonableness of their
safety must be measured by what is objectively reasonable in a detention setting.
See Wilson, 2020 WL 3056217, *11 (“our precedents do not require that prison
officials take every possible step to address a serious risk of harm…we must take
into account the ‘constraints facing the officials.’”) (citing Wilson v. Seiter, 501
U.S. 294, 303 (1991)). A proper inquiry requires the court to consider what
measures could be taken in a detention setting to reduce the risk of exposure and
whether Calhoun has done that, not to invalidate lawful detention because it does
not permit the same freedoms to a detainee as to a person who is not detained.
Because Calhoun has followed CDC guidance designed for detention settings, it
has acted reasonably.
Nor is there evidence that Respondents know the precautions to be
inadequate.3 First, with only five confirmed cases, the feared tinderbox scenario
has not materialized at Calhoun. See Thakker v. Doll, No. 20-480, 2020 WL
3 While Petitioners have claimed subjective intent is no longer required to establish deliberate indifference in a due process analysis under Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), as this Court has already noted, the Sixth Circuit has continued to apply it post-Kingsley. (Order, ECF No. 29, PageID.641, n.1). Further, Kingsley concluded that an excessive force claim could be sustained based on a showing that the force was “objectively unreasonable” absent a showing of subjective intent. Id. at 2472. However, it does not follow that the Court intended to overrule sub silentio its express holding in Farmer v. Brennan that “deliberate indifference . . . requir[es] a showing that the official was subjectively aware” of a substantial risk. 511 U.S. 825, 829 (1994). Finally, even if subjective intent is no longer required, under Wilson, the precautions at Calhoun are objectively reasonable and Petitioners cannot establish deliberate indifference.
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Case 5:20-cv-10829-JEL-APP ECF No. 101 filed 06/10/20 PageID.3586 Page 21 of 26
2025384, at *8 (M.D. Pa. Apr. 27, 2020) (finding the fears of “a ‘tinderbox’ scenario have largely failed to appear” and the allegation of harm was at that point, “largely speculative”). Second, Calhoun’s measures are not nominal and track the recommendations of the CDC for detention settings. Accordingly, Respondents have met their constitutional obligation to take some action to protect detainees from the risk of COVID-19, and cannot be found to be deliberately indifferent.
2. Petitioners cannot establish a Fifth Amendment violation under Bell v. Wolfish.
While this Court has previously held that deliberate indifference is the proper Fifth Amendment standard for Petitioners’ claim, Petitioners argue that their claim should be viewed under the “punishment” standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979) for conditions of confinement claims involving pretrial detainees. Respondents incorporate the arguments set forth in the supplemental briefing previously requested by the Court on this issue, and maintain that deliberate indifference is the appropriate standard to determine if there is a Fifth Amendment violation based on the conduct alleged. (Supp. Br., ECF No. 80). Additionally, the court found in Wilson that conditions similar to those at Calhoun are reasonable and do not establish a constitutional violation for failure to protect prisoners from COVID-19. It would be an odd result if immigration detainees at Calhoun were nonetheless entitled to greater safety from COVID-19 under Bell than the inmates at Calhoun where “reasonable safety” is a
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“basic human need.” See Butler v. Fletcher, 465 F.3d 340, 344-45 (8th Cir. 2006) (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)).
Further, even applying Bell, Petitioners do not prove a Fifth Amendment violation. “Under Bell, a pretrial detainee can demonstrate conditions of confinement amount to unconstitutional punishment: (1) by showing “an expressed intent to punish on the part of the detention facility officials,” or (2) by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H. v. Williamson Cty., Tennessee, 951 F.3d 709, 717 (6th Cir. 2020). Immigration detention is lawful and related to a legitimate government objective. See Demore v. Kim, 538 U.S. 510, 523 (2003) (“[D]etention during deportation proceedings [is] a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character.”) (citations and internal quotation marks omitted).
To establish that detention is excessive, Petitioners have a “heavy burden” to establish that Respondents “exaggerated [their] response” to the government’s legitimate purpose when they “actuated these restrictions and practices.” Bell, 441 U.S. 561-62. Petitioners cannot show that Respondents exaggerated their response
22

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to the legitimate purpose served by immigration detention in order to punish them. The decision to detain Petitioners was made independent of the pandemic, and is the same response applied to immigration detainees across the country. Further, many of the Petitioners were either subject to statutorily mandated detention or denied bond in a separate proceeding before an immigration judge. Detention in compliance with statutes enacted by a duly elected Congress or ordered by an immigration judge cannot be said to be excessive or punitive, particularly when the Supreme Court has repeatedly affirmed the constitutionality of detention pending removal. Nor is detention excessive merely because other less restrictive means exist. Id. at 540 (“If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention.”).
Other courts who have considered the issue have been unwilling to find that immigration detention, in and of itself, violates Bell’s prohibition on punitive conditions of confinement. See Dawson v. Asher, No. 20-0409, 2020 WL 1304557, at *2 (W.D. Wash. Mar. 19, 2020) (“Plaintiffs do not cite to authority, and the court is aware of none, under which the fact of detention itself becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak— even one as serious as COVID-19.”). “To adopt [Plaintiffs’] position would be to hold that the detention of any [civil] detainee during the pandemic is necessarily
23

Case 5:20-cv-10829-JEL-APP ECF No. 101 filed 06/10/20 PageID.3589 Page 24 of 26
unconstitutional.” Toure v. Hott, --- F. Supp. 3d ----, 2020 WL 2092639, at *10 (E.D. Va. Apr. 29, 2020). Like other courts in this district, this Court should decline to find a claim under Bell. See Murai v. Adducci, et al., Case No. 2010816, ECF No. 15 (Cleland, R.) (not addressing which standard should apply but finding immigration detention at Calhoun is not punitive); and Marqus v. Adducci, et al., Case No. 20-11121, ECF No. 7 (Hood, D.) (not addressing which standard should apply but finding that immigration detention is not punitive).
B. Public interest weighs in favor of denial of injunctive relief. It is well-settled that the public interest in enforcement of the United States’ immigration laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”). Moreover, it is the intent of Congress that certain petitioners be mandatorily detained. See 8 U.S.C. § 1231(a)(2), (c). Further, release of Petitioners Barash, Baroi, and Pavon is not in the public interest because they are a danger. Both Baroi and Pavon have convictions for domestic violence, and there is some indication that Pavon regularly abuses his wife. (Labadini, Ex. 2, ¶ 8, 10, 13; Hackett, Ex. 4, ¶ 9, 11). See Taub, A., A New COVID-19 Crisis: Domestic Abuse Rises Worldwide, The New York Times, 2020,
24

Case 5:20-cv-10829-JEL-APP ECF No. 101 filed 06/10/20 PageID.3590 Page 25 of 26
Ex. 11. Barash has a lengthy and sustained criminal history. (McClain, Ex. 1, ¶ 10, 12, 15). Barash, Santana, and Baroi are also flight risks. Barash has absconded from ICE in the past and failed to appear for criminal proceedings leading to a warrant for his arrest. Id. An immigration judge found Santana to be a flight risk. (Mitchell, Ex. 5, ¶ 10). Baroi is a flight risk given his imminent removal. (Labadini, Ex. 2, ¶ 19).
In addition, none of the Petitioners adequately address how they will avoid exposure from COVID-19 if released. See Wilson, 2020 WL 3056217, *11 (noting that inmates seeking injunctive relief did not address how they would “look after themselves” if released, meaning that the risk the inmate would face in society if released is relevant to the consideration). The Petitioners do not identify who else will live in the home, what those people do for a living, whether they have been tested, and whether any of those people are high-risk. They also do not address whether everyone in the home has been quarantined throughout the pandemic, or whether they too have the risk of asymptomatically transmitting COVID-19, as Petitioners assert for staff and other detainees at Calhoun. Release should not be ordered in a vacuum. If Petitioners face substantially the same risk of exposure to COVID-19 if released, they can hardly argue that their detention is unconstitutional because it exposes them to a similar risk. See Helling, 509 U.S. at 36.
25

Case 5:20-cv-10829-JEL-APP ECF No. 101 filed 06/10/20 PageID.3591 Page 26 of 26

V. CONCLUSION

For the above reasons, Respondents respectfully request the Court deny the

fourth motion for injunctive relief.

MATTHEW SCHNIEDER United States Attorney

By: /s/ Jennifer L. Newby_______

Dated: June 10, 2020

Jennifer L. Newby (P68891) Assistant United States Attorney Attorneys for Respondents 211 W. Fort Street, Suite 2001 Detroit, Michigan 48226 (313) 226-0295 Jennifer.Newby@usdoj.gov

CERTIFICATE OF SERVICE I hereby certify that on June 10, 2020, the foregoing paper was filed with the Clerk of the Court using the ECF System which will give notice to all counsel of record.
/s/ Jennifer L. Newby

26

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3592 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM,

Petitioner-Plaintiff,

and

QAID ALHALMI, et al., Plaintiff-Intervenors,

Case No. 2:20-cv-10829 Hon. Judith E. Levy Mag. Anthony P. Patti

v.

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF CHRISTOPHER MCCLAIN I, Christopher McClain, hereby make the following declaration with respect to the above-captioned matter: 1. I am a Deportation Officer employed in the Detroit Field Office of
Enforcement and Removal Operations (“ERO”), U.S. Immigration and Customs Enforcement (“ICE”), Department of Homeland Security (“DHS”). I have been employed with ICE since April 2007. My duties include summarizing immigration case histories, reviewing custody determinations, securing travel documents and conducting removal operations.
1

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3593 Page 2 of 7
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. I am familiar with the case of Waad Barash, a 55-year-old, native and citizen of Iraq, who is currently detained in ICE, ERO custody at the Calhoun County Correctional Center in Battle Creek, Michigan. I am providing this declaration to explain Barash’s immigration, criminal, and medical history as is relevant to the pending proceedings.
4. On July 25, 1974, Barash was admitted to the United States as a lawful permanent resident at New York, New York.
5. On October 13, 1987, Barash was served a Form I-221, Order to Show Cause in Deportation Proceedings based on his conviction for Delivery of Cocaine on February 28, 1984 in the 6th Circuit Court in Pontiac, Michigan. On July 7, 1988, Barash was granted a waiver pursuant to former 8 U.S.C. § 1182(c) by an Immigration Judge.
6. On December 15, 2005, Barash was arrested by ICE and served a Form I862, Notice to Appear (NTA). The NTA charged Barash as removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) based on a conviction for violating a
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3594 Page 3 of 7
state law relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(A)(ii) based on a conviction of two or more crimes involving moral turpitude and 8 U.S.C § 1227(a)(2)(A)(iii) based on a conviction of an aggravated felony (controlled substance trafficking). 7. On February 13, 2006, at a hearing in the Detroit Immigration Court, Barash admitted the allegations lodged against him in the NTA. Barash did not apply for relief and was ordered removed to Iraq. 8. On May 22, 2006, ICE released Barash on an Order of Supervision with reporting requirements. 9. On July 03, 2017, Barash filed a Motion to Reopen and a Motion for Stay of Removal with the Detroit Immigration Court. 10. On September 12, 2017, Barash failed to report to ICE as required. 11. On October 05, 2017, an Immigration Judge in the Detroit Immigration Court granted Barash’s Motion to Reopen. 12. On December 19, 2017, Barash was deemed to have absconded from ICE and violated the conditions of his Order of Supervision. 13. On February 02, 2020, ICE officers arrested Barash outside of his residence. Barash is detained pursuant to 8 U.S.C. § 1226(c). After being detained, Barash requested a bond hearing. On February 25, 2020, an Immigration Judge in the Detroit Immigration Court ruled that Barash was subject to
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3595 Page 4 of 7
mandatory detention, Barash waived his right to appeal the decision. 
 A review of Barash’s criminal history revealed the following: D On November 3, 1982, Barash was convicted of Larceny less than $100. Barash was sentenced to 12 months of probation. E On February 13, 1984, Barash was convicted of Larceny in a Building in the 6th Circuit Court in Pontiac, Michigan. Barash was sentenced to  months in jail. F On February 28, 1984, Barash was convicted of Delivery of Cocainein the 6th Circuit Court in Pontiac, Michigan. Barash was sentenced to days in jail and 2 years of probation. G On November 21, 1985, Barash was convicted of Breaking and Entering an Automobile with Damage in the 6th Circuit Court in Oakland County. Barash was sentenced to 1\HDULQMDLO. H On April 26, 2000, Barash was convicted of Possession of Marijuana or Synthetic Equivalents in the 38th District Court in Eastpoint, Michigan. Barash was sentenced to 12 months of probation. This conviction was taken under advisement.
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3596 Page 5 of 7
f. On June 19, 2003, Barash was convicted of Controlled Substance Delivery Manufacture-Ecstasy/MDMA and Delivery/Manufacture Marijuana in the 16th Circuit Court in Mount Clemens, Michigan. He later violated probation and was sentenced to 12 months in jail.
g. On July 14, 2004, Barash was convicted of Possession of Marijuana or Synthetic Equivalent in the 39th District Court in Roseville, Michigan. Barash was sentenced to 730 days of probation.
h. On December 7, 2004, Barash was convicted of Possession of Cocaine and Possession of Marijuana in the 16th Circuit Court in Mount Clemens, Michigan. Barash was sentenced to two years of probation.
i. On November 19, 2009, Barash was convicted of Possession of Analogues in the 16th Circuit Court in Mount Clemens, Michigan. Barash was sentenced to 180 days in jail.
j. On December 15, 2014, Barash was arrested in Troy, Michigan and charged with Operating while intoxicated. Barash failed to appear and a warrant was issued for his arrest.
k. On February 26, 2015, Barash was arrested in Warren, Michigan and charged with 3 counts of Controlled Substance Possession/Analogues. These charges were later dismissed.
5

Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3597 Page 6 of 7
16. The medical staff at the Calhoun County Correctional Center and the ICE Health Service Corps has provided the following information: a. Barash has not reported symptoms consistent with COVID-19 while at the Calhoun County Correctional Center. b. Barash did not report any medical issues to arresting officers or to booking personnel when he entered the Calhoun County Correctional Center. c. d.
e. f. g.
h.
i.
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Case 5:20-cv-10829-JEL-APP ECF No. 101-1 filed 06/10/20 PageID.3598 Page 7 of 7
j. 17. Barash is currently housed in C Pod at the Calhoun County Correctional
Center. C Pod has two floors, 27 two-person cells and 2 one-person cells. Barash is currently housed in cell 21-01 which is a two-person cell. The capacity of C Pod is 56 and as of June 10th, 2020 there are 53 occupants. Of the 53 occupants, 20 are ICE detainees.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on this 10th day of June, 2020,
CHRISTOPHER C Digitally signed by CHRISTOPHER C MCCLAIN
_M__C_C__L_A_I_N__________D_at_e:_20_2_0.0_6_.1_0 _13_:2_7:_58_-_04_'0_0'____
Christopher McClain Deportation Officer
7

Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3599 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM, et. al.

Petitioners-Plaintiffs v.

Case No. No. 2:20-cv-10829 Hon. Judith E. Levy

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF CHRISTOPHER LABADINI

I, Christopher Labadini, hereby make the following declaration with respect to

the above-captioned matter:

1. I am a Deportation Officer with the Detroit Field Office of Enforcement and

Removal Operations (ERO), U.S. Immigration and Customs Enforcement

(ICE), U.S. Department of Homeland Security (DHS). I have been

employed with ICE, ERO since January 2009, and in my current position

since October 2019. In this position, my duties entail detained docket case

management of detainees from Asia and the Middle East.

2. I provide this declaration based on my personal knowledge, belief,

reasonable inquiry, and information obtained from various records, systems,

databases, other DHS employees, employees of DHS contract facilities, and

information portals maintained and relied upon by DHS in the regular course
1

Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3600 Page 2 of 6
of business. 3. I am familiar with the case of Leonard Victor Baroi (hereinafter Baroi).
Baroi is currently detained in ICE, ERO custody at the Calhoun County Correctional Center (Calhoun County) in Battle Creek, Michigan. Baroi is detained pursuant to 8 U.S.C. § 1231(a)(2), as an alien who is the subject of a final order of removal. 4. I provide this declaration to explain Baroi’s immigration, criminal and medical history as is relevant to these pending proceedings. 5. Baroi is a 23-year-old, native and citizen of Bangladesh, who was admitted to the United States as a non-immigrant visitor for pleasure on February 8, 2014, with authorization to remain in the United States for a temporary period not to exceed August 7, 2014. 6.
.
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3601 Page 3 of 6
7. USCIS issued Baroi a Form I-862, Notice to Appear (NTA) charging him with violating 8 U.S.C. § 1227 (a)(1)(B), for remaining in the United States beyond the period authorized by his non-immigrant admission.
8. On December 20, 2019, while his removal proceedings remained pending, Baroi was arrested in Ottawa County, Michigan, and charged with Assault with Intent to do Great Bodily Harm Less Than Murder or by Strangulation and Domestic Violence in violation of Michigan Compiled Laws (MCL) sections 750.84 and 750.812, respectively. On this same date, ICE, ERO placed a detainer with the Ottawa County Jail where Baroi was detained.
9. On or about March 2, 2020, Baroi was released from the Ottawa County Jail and taken into ICE custody.
10. At a hearing before the Immigration Court on April 10, 2020, an Immigration Judge in Detroit, Michigan found Baroi to be a danger to the community and denied his request for a change in custody status.
11.
12.
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Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3602 Page 4 of 6
a. On January 24, 2020, at the 58th District Court, Holland, Michigan, Baroi pled no contest to added counts of Attempted Interference with Electronic Communications in violation of MCL section 750.5405A and Assault or Assault and Battery in violation of MCL section 750.81.
b. On February 4, 2020, at the 58th District Court, Holland, Michigan a Judge sentenced Baroi to 90 days jail for the offense of Attempt Interfere with Electronic Communications in violation of MCL section 750.5405A(A) and 90 days jail for Assault or Assault and Battery in violation of MCL section 750.81.
13. According to the police report for this offense, Baroi slapped the victim across the face and placed his hands around her neck, making it difficult for the victim to breathe. The victim reported that Baroi had a handgun, which he used to strike her three times. He then loaded the gun and held it to her temple, stating “I’m gonna fucking kill you.” According to the report, the victim had a visible bruise and swelling behind her left ear and on her left eyebrow near her nose. She had red scratch marks on her neck and a bruise on the tricep area of her right arm.
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3603 Page 5 of 6

14. On March 2, 2020 when ICE, ERO took custody of and processed Baroi, he

claimed to be in good health, taking no medications, and reported no history

of mental illness.

15.On March 2, 2020, Baroi was given an initial medical assessment when

booked into Calhoun County. Baroi did not indicate any medical conditions

and denied that he was taking any medications. The medical staff

communicated with Baroi in English.

16.On March 12, 2020,

:

.

17. On June 2, 2020, ERO requested that Calhoun County provide Baroi’s

current medical status, to include any diagnosis and treatments while in

custody. The medical staff reported that there are no medical conditions and

Baroi takes no medications. Baroi has not put in any requests to be seen by

medical staff.

18. On June 6, 2020,

:

19.On June 9, 2020, Baroi was transferred to Alexandria, Louisiana in

preparation for his imminent removal from the United States to Bangladesh.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the

foregoing is true and correct.

5

Case 5:20-cv-10829-JEL-APP ECF No. 101-2 filed 06/10/20 PageID.3604 Page 6 of 6
Executed on this 9th day of June 2020, _______________________________________ CHRISTOPHER E LABADINI Digitally signed by CHRISTOPHER E LABADINI
Date: 2020.06.09 12:54:25 -04'00'
Christopher Labadini Deportation Officer
6

Case 5:20-cv-10829-JEL-APP ECF No. 101-3 filed 06/10/20 PageID.3605 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM, Petitioner-Plaintiff,
and QAID ALHALMI, et al.,
Plaintiff-Intervenors, v. REBECCA ADDUCCI, et al.,
Respondents-Defendants.

Case No. 2:20-cv-10829 Hon. Judith E. Levy Mag. Anthony P. Patti

DECLARATION OF LUCAS WANDYG

I, Lucas Wandyg, hereby make the following declaration with respect to the above-captioned matter:
1. I am a Deportation Officer with the Detroit Field Office of Enforcement and Removal Operations (ERO), U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS). I have been employed with ICE, ERO since November 23, 2008. In my current position, my duties include, but are not limited to, conducting docket management and monitoring detainees who are in removal proceedings or with final orders of removal in the Detroit Field Office area of responsibility.
1

Case 5:20-cv-10829-JEL-APP ECF No. 101-3 filed 06/10/20 PageID.3606 Page 2 of 5
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. I am familiar with the case of Lenche Krcoska. Krcoska is currently detained in ICE custody at the Calhoun County Correctional Center in Battle Creek, Michigan. Krcoska is in custody pursuant to 8 U.S.C. § 1225(b)(2)(A). I provide this declaration to explain Krcoska’s immigration, criminal, and medical history as is relevant to these pending proceedings.
4. Krcoska is a 52-year-old, native of Yugoslavia and citizen of North Macedonia, born on December 18, 1967. On September 15, 2019, Krcoska applied for admission to the United States at the Ambassador Bridge in Detroit, Michigan while falsely representing herself as a U.S. citizen by using the United States passport of someone other than herself.
5. On September 16, 2019, U. S. Customs and Border Protection (CBP) paroled Krcoska into the United States pending prosecution for violating 18 U.S.C. § 1544.
6. On September 18, 2019, Krcoska was turned over to the U.S. Marshals Service for detention pending criminal prosecution. Krcoska consented to detention in those proceedings.
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-3 filed 06/10/20 PageID.3607 Page 3 of 5
7. On December 10, 2019, Krcoska was convicted in this Court of violating 18 U.SC. § 1544, Improper Use of Another’s Passport, and sentenced to time served. ICE, ERO took custody of Krcoska upon her release by the U.S. Marshals Service.
8. On February 12, 2020, CBP served Krcoska with a Form I-862, Notice to Appear, charging her as removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) for not possessing valid entry and travel documents, and under 8 U.S.C. § 1182(a)(6)(C)(ii) for falsely representing herself to be a citizen of the United States to obtain a purpose or benefit under the Immigration and Nationality Act, or any other Federal or State Law.
9.
10
11.When Krcoska was taken into ICE custody, an initial medical intake assessment was performed by medical staff at the Calhoun County
3

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Correctional Center on or about January 9, 2020. 12
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-3 filed 06/10/20 PageID.3609 Page 5 of 5
13 14
15. Krcoska is housed in Unit L at the Calhoun County Correctional Center. Unit L has a capacity of forty-one people and currently houses twelve inmates, including five ICE detainees. Unit L is a dorm style with bunk beds.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on this tenth day of June, 2020,
LUCAS P WANDYG Digitally signed by LUCAS P WANDYG
____________________D_at_e:_20_2_0.0_6_.10_1_7:_02_:3_3 -_04_'0_0'____ Lucas Wandyg Deportation Officer
5

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3610 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM,

Petitioner-Plaintiff,

and QAID ALHALMI, et al.,
Plaintiff-Intervenors,

Case No. 2:20-cv-10829 Hon. Judith E. Levy Mag. Anthony P. Patti

v.

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF STEVEN HACKETT

I, Steven Hackett, hereby make the following declaration with respect to the

above-captioned matter:

1. I am a Deportation Officer employed in the Detroit Field Office, Office of

Enforcement and Removal Operations (“ERO”), United States Immigration

and Customs Enforcement (“ICE”), Department of Homeland Security

(“DHS”). I have been employed with ICE since August of 2008. I am

assigned to the Detained Docket within ICE, ERO and my duties in this

position include, but are not limited to: conducting docket management to

monitor detainees who are in removal proceedings or with final orders of

1

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3611 Page 2 of 6
removal; reviewing the custody status of detainees; and obtaining necessary travel documents to effectuate removal from the United States. 2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. I am familiar with the case of Sergio Perez Pavon (hereinafter Perez Pavon). Perez Pavon is currently detained in ICE, ERO custody at the Calhoun County Correctional Center in Battle Creek, Michigan. Perez Pavon is in ICE custody pursuant to 8 U.S.C. § 1226(a). I provide this declaration to explain Perez Pavon’s immigration, criminal, and medical history as is relevant to the pending proceedings. 4. Perez Pavon is a 36-year-old, native and citizen of Mexico, who was born on November 7, 1983. Perez Pavon entered the United States on an unknown date and time without admission or parole after inspection by an immigration officer. 5. On May 29, 2003, the United States Border Patrol (“USBP”) administratively arrested Perez Pavon for entering the United States without inspection, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3612 Page 3 of 6
6. On June 6, 2003, the USBP issued Perez Pavon a Voluntary Return and returned him to Mexico on the same day.
7. On January 30, 2020, Perez Pavon was encountered by ICE, ERO at the Ottawa County Jail in West Olive, Michigan, after his arrest by the Ottawa County Sheriff’s Office.
8. On February 7, 2020, after his release from the Ottawa County Jail, ICE, ERO arrested Perez Pavon and issued him a Form I-862, Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without being inspected and admitted or paroled by an immigration officer.
9. On March 3, 2020, at a hearing before the Detroit Immigration Court within the U.S. Department of Justice, Executive Office for Immigration Review, Perez Pavon conceded his removability as charged, but requested release on bond. An immigration judge denied bond under 8 U.S.C. § 1226(a), finding that Perez Pavon was a danger to the community based upon his criminal convictions. Perez Pavon did not file an appeal of this decision.
10.On May 7, 2020, a hearing was held at the Detroit Immigration Court to adjudicate Perez Pavon’s application for withholding of removal. An immigration judge denied all relief, and ordered Perez Pavon removed to Mexico. Perez Pavon reserved appeal, and filed an appeal with the Board of
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3613 Page 4 of 6
Immigration Appeals on June 1, 2020. The appeal is pending the issuance of transcripts and a briefing schedule. 11. A criminal record check revealed the following:
a. On November 9, 2018, the Ottawa County Sheriff’s Office arrested Perez Pavon and he was charged with Retail Fraud – 3rd Degree, in violation of section 750.356d(4) of the Michigan Compiled Laws (“MCL”). On November 27, 2018, Perez Pavon pled guilty in the 58th District Court in Holland, Michigan, and the court sentenced him to three hundred and fifty dollars ($350.00) in fines and costs. b. On January 30, 2020, the Ottawa County Sheriff’s Office arrested Perez Pavon for the offense of Domestic Violence. The police report indicates that the victim, Perez Pavon’s wife, reported that Perez Pavon was intoxicated, got into an argument with her, and punched her in the face two times. The officer observed discoloration and an apparent bruise on her face. The victim denied that Perez Pavon had assaulted in her in the past, but the victim’s brother reported to the police that Perez Pavon assaults her on a regular basis. On February 4, 2020, the 58th District Court in Holland, Michigan convicted Perez Pavon of Domestic Violence, in violation of MCL § 750.812, and sentenced him to 5 days incarceration.
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3614 Page 5 of 6

12. On February 7, 2020, Perez Pavon was taken into ICE custody and detained

at the Calhoun County Correctional Center. Perez Pavon was evaluated by

medical staff at the Calhoun County Correctional Center, and he disclosed a

history

. Perez Pavon was also diagnosed with

. He is currently prescribed

Medical staff monitors his

Medical staff also monitors hi 9, 2020, 13.

On June

14. ICE, ERO has conducted an individualized review of Perez Pavon’s case and decided to continue his detention pending his removal proceedings based upon his criminal history.
15. Perez Pavon is currently housed in Unit H at the Calhoun County Correctional Center. Unit H has a maximum capacity of 36 individuals, and is currently under capacity with 25 individuals. Unit H is a dormitory style unit that is divided into two floors. Unit H is further divided into individual

5

Case 5:20-cv-10829-JEL-APP ECF No. 101-4 filed 06/10/20 PageID.3615 Page 6 of 6
cubes with bunk beds. Perez Pavon is housed in a cube with 6 other detainees. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on this 10th day of June, 2020,
HACKETT.STEVEN.VINCENT.109384 Digitally signed by HACKETT.STEVEN.VINCENT.1093844269
_4_26_9__________________Da_te:_20_20._06._10_13_:20_:14_-0_4'0_0' _______ Steven Hackett Deportation Officer
6

Case 5:20-cv-10829-JEL-APP ECF No. 101-5 filed 06/10/20 PageID.3616 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM, et al.

Petitioners-Plaintiffs v.

Case No. 2:20-cv-10829

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF TYRONE MITCHELL JR.

I, Tyrone Mitchell Jr., hereby make the following declaration with respect to the

above-captioned matter:

1. I am a Deportation Officer with the Detroit Field Office of Enforcement and

Removal Operations (ERO), U.S. Immigration and Customs Enforcement

(ICE), U.S. Department of Homeland Security (DHS). I have been employed

with ICE, ERO since December 2008, and in my current position since

October 2019. In my current position, my duties include managing the

detained docket for citizens and nationals of Mexico, Central and South

America, as well as and monitoring the progress of cases pending before the

Detroit Immigration Court.

2. I provide this declaration based on my personal knowledge, belief,

reasonable inquiry, and information obtained from various records, systems,

1

Case 5:20-cv-10829-JEL-APP ECF No. 101-5 filed 06/10/20 PageID.3617 Page 2 of 5
databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. I am familiar with the case of Yohandry Ley-Santana. Ley-Santana is currently detained in ICE, ERO custody at the Calhoun County Correctional Center (CCCC) in Battle Creek, Michigan, while he awaits removal to Cuba. I provide this declaration to explain Ley-Santana’s immigration and criminal history as is relevant to custody and his pending removal. 4. Ley-Santana is a 33 year-old, native and citizen of Cuba, who was apprehended by U.S. Border Patrol agents near El Paso, Texas on June 1, 2019. 5. On June 1, 2019, U.S. Border Patrol agents issued Ley-Santana a Form I860, Notice and Order of Expedited Removal, pursuant to 8 U.S.C. § 1225(b)(1)(A)(i). 6. On June 23, 2019, Ley-Santana was transferred from El Paso, Texas, to the CCCC due to a shortage of available housing in Texas. 7.
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-5 filed 06/10/20 PageID.3618 Page 3 of 5
8. On July 3, 2019, USCIS issued a Form I-862, Notice to Appear (NTA), initiating removal proceedings against Ley-Santana. The NTA, which was filed with the Detroit Immigration Court on July 16, 2019, charged LeySantana with being inadmissible to the United States pursuant to 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), as an intending immigrant without an immigrant visa, and 1182(a)(6)(A)(i), for being present in the United States without being admitted or paroled.
9.
10
11
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-5 filed 06/10/20 PageID.3619 Page 4 of 5
12.On March 11, 2020, the BIA dismissed Ley-Santana’s appeal of the Immigration Judge’s decision. He is subject to a final order of removal, and is awaiting his removal to Cuba. Ley-Santana is currently detained pursuant to 8 U.S.C. § 1231.
13.A review of Ley-Santana’s criminal history reveals that on June 17, 2019, he was convicted, in the U.S. District Court for the Western District of Texas, of improper entry by an alien, in violation of 8 U.S.C. § 1325(a)(1). He was sentenced to time served plus one business day for this conviction.
14.The medical staff at the CCCC has provided the following information: a.
b.
c.
d.
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-5 filed 06/10/20 PageID.3620 Page 5 of 5
15.Ley-Santana is housed in Pod D at the CCCC. Pod D consists of 29 cells, 27 are two person cells with bunks. He is housed with another ICE detainee. The unit that Ley-Santana is housed in has 42 detainees with a capacity of 56.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on this 9th day of June, 2020,
Digitally signed by TYRONE C
TYRONE C MITCHELL JR MITCHELL JR
__________________Da_te_: 2_02_0._06_.0_9 0_6_:45_:0_7 _-04_'0_0'_______ Tyrone Mitchell Jr. Deportation Officer
5

Case 5:20-cv-10829-JEL-APP ECF No. 101-6 filed 06/10/20 PageID.3621 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM, et al.,

Petitioners-Plaintiffs, v.

Case No. 2:20-cv-10829

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF TODD ANKENBAUER

I, Todd Ankenbauer, hereby make the following declaration with respect to the

above-captioned matter:

1. I am a Deportation Officer employed in the Detroit Field Office of

Enforcement and Removal Operations (“ERO”), U.S. Immigration and

Customs Enforcement (“ICE”), Department of Homeland Security (“DHS”).

I have been employed with ICE since June 2007 and in my current position

since October 2019. In my current position, my duties include managing the

detained docket for citizens and nationals of Europe and Africa and

monitoring the progress of cases pending before the Detroit Immigration

Court.

2. I provide this declaration based on my personal knowledge, belief,

reasonable inquiry, and information obtained from various records, systems,
1

Case 5:20-cv-10829-JEL-APP ECF No. 101-6 filed 06/10/20 PageID.3622 Page 2 of 4
databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. I am familiar with the case of Johanna Whernman, a 57 year-old native and citizen of Sweden, who is currently detained in ICE, ERO custody at the Calhoun County Correctional Center (CCCC) in Battle Creek, Michigan. I am providing this declaration to explain Whernman’s immigration and medical history as is relevant to the pending proceedings. 4. Pursuant to 8 U.S.C. § 1187, the Visa Waiver Program enables most citizens or nationals of participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Whernman entered the United States several times pursuant to the Visa Waiver Program before overstaying her authorized period of admission during her most recent entry. 5. On August 27, 2019, U.S. Customs and Border Protection (CBP) admitted Whernman to the United States as a Visa Waiver Program tourist at Chicago, Illinois. Whernman was authorized to remain in the United States until November 24, 2019. 6. On February 19, 2020, CBP encountered and detained Whernman at the Detroit Ambassador Bridge international border crossing after the Canadian
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-6 filed 06/10/20 PageID.3623 Page 3 of 4
Border Services Agency refused Whernman’s attempt to enter Canada. 7. On February 20, 2020, CBP served Whernman with a Visa Waiver Final
Administrative Removal Order and she was placed in ICE custody at the CCCC. Whernman is detained pursuant to 8 U.S.C. § 1187(c)(2)(E) pending her removal to Sweden, which is currently scheduled for June 22, 2020. Flight cancellations have delayed several prior attempts to remove Whernman. 8. The medical staff at CCCC has provided the following information:
a. Whernman has not reported symptoms consistent with COVID-19 to the medical staff.
b.
c.
d. 9. Whernman is housed in Unit K at the CCCC. Unit K consists of two floors.
Each of the two floors contains three 2-person cells. Unit K has a capacity of 12 people and currently houses four inmates, including two ICE detainees. Whernman has no roommate.
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-6 filed 06/10/20 PageID.3624 Page 4 of 4
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on this 9th day of June 2020. _______________________________________ Todd Ankenbauer Deportation Officer
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-7 filed 06/10/20 PageID.3625 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MALAM, et al.,

Petitioners-Plaintiffs,

v.

Case No. 2:20-cv-10829

REBECCA ADDUCCI, et al.,

Respondents-Defendants.

DECLARATION OF TODD ANKENBAUER I, Todd Ankenbauer, hereby make the following declaration with respect to the above-captioned matter: 1. I am a Deportation Officer employed in the Detroit Field Office of
Enforcement and Removal Operations (“ERO”), U.S. Immigration and Customs Enforcement (“ICE”), Department of Homeland Security (“DHS”). I have been employed with ICE since June 2007 and in my current position since October 2019. In my current position, my duties include managing the detained docket for citizens and nationals of Europe and Africa and monitoring the progress of cases pending before the Detroit Immigration Court. 2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems,
1

Case 5:20-cv-10829-JEL-APP ECF No. 101-7 filed 06/10/20 PageID.3626 Page 2 of 3
databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. I am familiar with the case of William Whernman, a 22 year-old native and citizen of Sweden, who is currently detained in ICE, ERO custody at the Calhoun County Correctional Center (CCCC) in Battle Creek, Michigan. I am providing this declaration to explain Whernman’s immigration and medical history as is relevant to the pending proceedings. 4. Pursuant to 8 U.S.C. § 1187, the Visa Waiver Program enables most citizens or nationals of participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. 5. On August 27, 2019, U.S. Customs and Border Protection (CBP) admitted Whernman to the United States as a Visa Waiver Program tourist, at Chicago, Illinois. Whernman was authorized to remain in the United States until November 24, 2019. 6. On February 19, 2020, CBP encountered and detained Whernman at the Detroit Ambassador Bridge international border crossing after the Canadian Border Services Agency refused Whernman’s attempt to enter Canada. 7. On February 20, 2020, CBP served Whernman with a Visa Waiver Final Administrative Removal Order and he was placed in ICE custody at the
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-7 filed 06/10/20 PageID.3627 Page 3 of 3
CCCC. Whernman is detained pursuant to 8 U.S.C. § 1187(c)(2)(E) pending his removal to Sweden, which is currently scheduled for June 22, 2020. Flight cancellations have delayed several prior attempts to remove Whernman. 8. The medical staff at CCCC has provided the following information:
a. Whernman has not reported symptoms consistent with COVID-19 to the medical staff.
b. .
c. At his CCCC medical intake,

d.

.

9. Whernman is housed in Unit P at the CCCC. Unit P consists of 20 two-

person cells on two floors. It has a capacity of 40 people and currently

houses 6 people. Whernman has no roommate.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the

foregoing is true and correct.

Executed on this 9th day of June 2020.

_______________________________________ Todd Ankenbauer Deportation Officer
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3628 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Janet Malam, et al.

Petitioner-Plaintiff,

Civil No. 20-10829

v. Rebecca Adducci,

Honorable Judith E. Levy Mag. Judge Anthony P. Patti

Respondent-Defendant.

_________________________________________/

DECLARATION OF JAMES JACOBS

I, James Jacobs, hereby make the following declaration with respect to the

above-captioned matter:

1. I am an Assistant Field Office Director with the Detroit Field Office of

Enforcement and Removal Operations (ERO), U.S. Immigration and

Customs Enforcement (ICE), U.S. Department of Homeland Security

(DHS). I have been employed with ICE, ERO since December 2005, and in

my current position since September 2009. In my current position, my

duties include oversight of ICE detention facility matters in the Detroit Field

Office area of responsibility.

2. I provide this declaration based on my personal knowledge, belief,

reasonable inquiry, and information obtained from various records, systems,

1

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3629 Page 2 of 10
databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. In my current position, I work with our ICE Health Service Corps (IHSC), Field Medical Coordinator (FMC) regarding detained chronic care cases and detained cases requiring greater medical care management. The FMCs serve as medical consultants to the ICE field offices and oversee clinical services at Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees, including the Calhoun County Correctional Center (Calhoun County) in Battle Creek, Michigan. 4. IHSC provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation. 5. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility. 6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public
2

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3630 Page 3 of 10
Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals. 7. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees. 8. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care. 9. IHSC requires IGSA facilities, like Calhoun County, to comply with ICE Guidance regarding COVID-19. 10. Calhoun also maintains its own Emergency Response Plan for COVID-19 created by national correctional healthcare provider, Corizon Health. 11. As of June 10, 2020, IHSC has the following information, since the start of the pandemic, Calhoun has had five confirmed cases of COVID-19. 12. The first confirmed positive result was tested on May 7, 2020. The detainee had symptoms at intake and was isolated and tested. Three detainees and one inmate had close contact with the positive detainee and were also tested. One detainee tested positive. All four were in quarantine and had not been in the general population.
3

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3631 Page 4 of 10
13. On May 23, 2020, voluntary mass testing for COVID-19 of detainees, inmates, and staff was conducted at Calhoun by the Michigan National Guard. Of the 50 detainees, 47 inmates and 16 staff members who were tested, two detainees tested positive, but were asymptomatic. One of the asymptomatic detainees was in quarantine at the time of the positive result and is quarantined alone. The other asymptomatic detainee was moved to a general population unit before test results were received. He is now isolated, and the unit is under twice daily medical monitoring, including checking body temperature for 14 days. There are no suspected cases in the unit.
14. A detainee arrived at intake with symptoms on May 23, 2020, and was isolated and tested positive. Efforts to Reduce Introduction of COVID-19
15. Transport staff are equipped with masks and gloves during transport. 16. At Calhoun County, all inmates and detainees are immediately provided a
mask and undergo a medical screening at intake. During the screening they are assessed for fever and respiratory illness, asked their travel history and asked to confirm if they have had close contact with a person with suspected or confirmed COVID-19 in the past 14 days. The assessment is made in accordance with a screening procedure created by Corizon Health. A copy of the screening form is attached.
4

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3632 Page 5 of 10
17. All detainees and inmates are quarantined for 14-days before they are placed in the general population. Detainees and inmates that answer “no” to all questions during the medical screening and who do not have a fever are housed in the low risk quarantine unit. Detainees and inmates that answer “yes” to any of the questions or who have a fever are further assessed by medical personnel and then assigned to either the low or high risk quarantine unit, or isolated pending testing. Medical staff assesses all detainees and inmates while in quarantine for symptoms, regardless of risk level, twice daily, including checking body temperature. During quarantine, food service and any medication is delivered to the cell. Detainee and inmate time in the common areas is significantly restricted and time out of the cell is segregated by entry date with sanitization between groups.
18. Staff entering the high-risk quarantine units are required to wear an N95 mask, gloves, and face shield. Any detainees or inmates who leave high-risk housing units during quarantine are required to wear a mask and gloves. Staff are required to wear masks in the low-risk quarantine units. Any detainees or inmates who leave low-risk housing units during quarantine are required to wear a mask.
19. Each general housing unit has its own air handling system that goes directly to the outside.
5

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3633 Page 6 of 10
20. All detainees and inmates are provided two surgical grade masks that are replaced upon request at no charge. They are required to wear masks outside of the housing unit.
21. All staff at intake and booking are required to wear masks. Staff are encouraged to wear masks at all times.
22. Detainees and inmates are tested for COVID-19 based on an individual medical assessment in accordance with testing guidelines from the CDC and the Michigan Department of Health and Human Services.
23. Detainees or inmates who test positive for COVID-19 are isolated. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines.
24. Calhoun County provides daily access to sick calls in a clinical setting and has onsite medical observation rooms, access to specialty services, and hospital care. Individuals who say they have any symptoms are seen straight away by healthcare staff.
25. Calhoun County is screening all staff and vendors when they enter the facility for symptoms, including checking body temperature. In addition to being turned away, staff who screen positive are directed to their personal physician.
6

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3634 Page 7 of 10
26. Calhoun County has limited professional visits to noncontact visits except in certain circumstances and suspended in person social visitation but allows social video visitation. Efforts to Improve Hygiene
27. Calhoun County provides education on COVID-19 to staff and detainees including the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting medical care if a detainee feels ill.
28. There are signs in the housing units in English, Spanish, and Arabic reminding detainees of proper hygiene, the need to social distance, and symptoms of COVID-19. The signs also include graphic depictions.
29. Calhoun County has increased sanitation frequency. Cells are cleaned daily and common areas are cleaned hourly.
30. Detainees have access to cleaning supplies at all times and are encouraged to do additional cleaning. Detainees use paper towel for cleaning which is discarded after use.
31. The disinfectant used to clean cells is Ecolab Peroxide Multi-Surface Cleaner and Disinfectant, which kills the human coronavirus.
32. Each general housing unit has a sink and toilet in each cell. Hand washing stations are also available in all areas of the housing units for detainees to
7

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3635 Page 8 of 10
wash their hands. Detainees are issued and have continual access to bars of soap. A new bar of soap is provided upon request. The soap provided is antibacterial and in adequate supply. 33. Calhoun County provides staff with disinfectants, hand sanitizer, soap, masks, gloves, gowns, and eye protection. Efforts to Increase Social Distancing 34. Calhoun County has a population within its approved capacity and is not overcrowded. As of June 10, 2020, Calhoun County houses 349 detainees and inmates, but has the capacity to house 640. 35. All detainees have been educated on social distancing, and signage is posted to remind them to maintain a six-foot distance whenever possible. 36. Calhoun sends ICE a weekly report identifying all detainees with chronic medical conditions, including those with high-risk conditions as identified by the CDC. 37. ICE reviews its detained at risk population as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the
8

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3636 Page 9 of 10
foregoing is true and correct. Executed on this 10th day of June, 2020, _______________________________________ James Jacobs Assistant Field Office Director
9

Case 5:20-cv-10829-JEL-APP ECF No. 101-8 filed 06/10/20 PageID.3637 Page 10 of
Clinica10l Services / Nursing Services
Coronavirus (COVID-19) Screening Form - 2020

Facility Name (Do Not Abbreviate)

DEMOGRAPHICS
Facility Number

Date of Screening:

Patient Name Last Patient Number

First

Sex

Birth Date

 Male  Female

Screening Questions

Time Screened: MI Location Screened: (Intake, Other, etc.)
Additional Information

Has the patient traveled outside of the current state within the last 14 days?
In the past 14 days, has the patient had close contact with a person who is under investigation for, or positive with, COVID-19? Has the patient been incarcerated in another jail or prison in the past 30 days? Does the patient have either symptom from Group A below?

□ No ☐ Yes Where:
□ No ☐ Yes □ No ☐ Yes Where:

Cough? □ No ☐ Yes

Shortness of Breath? □ No ☐ Yes

Does the patient have any symptoms from Group B below?

Fever (temp ≥ 100.4 oral)? □ No ☐ Yes, If Yes: F/C

Chills/Repeated shaking with chills? □ No ☐ Yes

Muscle Pain? □ No ☐ Yes

Headache? □ No ☐ Yes

Sore Throat? □ No ☐ Yes

New loss of taste or smell? □ No ☐ Yes, If yes, onset:

Nausea/vomiting? □ No ☐ Yes

If the patient has one or both symptoms from Group A and/or at least two symptoms from Group B: contact the provider for orders.

If the patient has traveled or has a known/suspected exposure to a confirmed positive or person under investigation, notify the provider regardless of whether the patient has symptoms or not.

*Note: Symptoms may appear 2-14 days after exposure. Per the CDC:
• Healthcare Providers should immediately notify their local or state health department in the event of a person under investigation (PUI) for COVID-19, to be advised on necessary interventions and treatment
• Suspected patients should be given a surgical/procedural mask to wear duringtransport • Suspected patients should be placed in Airborne Infection Isolation Room (AIIR) or negative pressure room with
proper precautions, if available
• Treating staff should wear N95 and PPE and perform hand hygiene before and after all patient contact

Provider Contacted

□ Yes ☐ No ☐ N/A Provider Name:

Time:

If provider contacted

Orders Given ☐ Yes ☐ No ☐ See Medical Records Patient Placed in Isolation ☐ Yes ☐ No Health Department Contacted ☐ Yes ☐ No ☐ N/A

Disposition: □ Transported Offsite/Hospital □ Transport to Medical Unit/Infirmary □ Treatment - See MedicalRecords

Signature

Print Name

Title

Date

NA1914 Issued 01/2020

Revised 05/01/2020

Page 1 of 1

© 2020 Corizon Health, Inc. All prior written consent of Corizon

information and photos are confidential Health. All Rights Reserved.

and

proprietary

and

cannot

be

otherwise

used

or

disseminated

wICithEou-t0th0e 0821

FAQs for Administrators, Staff, Case 5:20-cv-10829-JEL-APP ECF No. 101-9 filed 06/10/20 PageID.3638 Page 1 of 9 People Who Are Incarcerated, and Families
The information provided in these FAQs do not cover all questions or issues faced by custodial settings (prisons, jails, detention facilities). As with the full CDC guidance document, this information may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying actions or concerns not specifically covered in the CDC guidance.
FAQs for Administrators at Correctional and Detention Facilities
How to prepare your facility for the possible spread of COVID-19
Q. What steps should I take to prepare my facility?
A. Because of close contact and the number of people in correctional and detention facilities (including prisons and jails), staff and people who are incarcerated are at greater risk for the spread of germs. To help your facility prepare for the possible spread of COVID-19, update your emergency operations plan. This includes: • Adding key COVID-19 prevention strategies and posting information in the facility on how to limit the spread of germs. • Reminding staff to stay home when sick. • Identifying points of contact for local public health agencies. • Identifying physical locations (dedicated housing areas and bathrooms) where you can medically isolate incarcerated persons, as well as where to quarantine known close contacts of people with COVID-19. q Follow guidance on medical isolation and quarantine. q Medical isolation and quarantine locations should be separate. • Offering flu shots to staff and people who are incarcerated, because limiting cases of flu can help speed the identification of people with COVID-19. • Developing ways to continue providing critical services, such as mental health support. • Ensuring adequate stocks of hygiene, cleaning, and medical supplies. q Hygiene: Soap (preferably liquid to promote use), tissues, and hand drying supplies, as well as hand sanitizers, when possible. Ensure no-cost access to soap. q Cleaning: EPA-registered disinfectants effective against the virus that causes COVID-19. q Medical supplies: Supplies for daily clinic needs, personal protective equipment (PPE), and testing. • Creating and testing communications plans to share critical information. • Setting up systems to safely transfer people between facilities and identifying alternative strategies to in-person court appearances, when possible.

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q Prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
• Planning for staff absenteeism.
Follow CDC guidance on recommended PPE for staff who will have direct contact with an individual with possible COVID-19 infection, or infectious materials. Make contingency plans for the likely event of PPE shortages.
Follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates for staff evaluating and providing care for confirmed or suspected COVID-19 cases. When no on-site healthcare capacity is available, make a plan for how to ensure that people suspected to have COVID-19 will be medically isolated, evaluated, tested (if indicated), and provided medical care. Contact and collaborate with your state, local, tribal and territorial health departments for more specific guidance.
Q. How can I lower the chance that my staff will get COVID-19?
A. The best way to protect your staff is to prevent exposure. Start by: • Staying informed about updates to CDC guidance via the CDC COVID-19 website. • Making sure staff are aware of COVID-19 symptoms and requiring staff with any flu-like symptoms to stay home (or be sent home if they develop symptoms while at the facility). • Offering telework for staff when feasible, and exploring ways to revise duties that require face-to-face interaction for staff at high-risk for severe illness. • Ensuring staff use everyday preventive actions (such as washing hands, avoiding touching their eyes, nose, and mouth, covering their cough). • Managing and monitoring staff absenteeism. q Alert local public health officials about large increases in staff absenteeism, particularly if absences appear due to respiratory illnesses (like the common cold or the flu, which have symptoms similar to COVID-19). • Offering flu shots to staff, as limiting cases of flu can speed up the identification of people with COVID-19. • Stocking and providing supplies that help prevent the spread of germs. • Routinely cleaning and disinfecting the facility. • Consult CDC guidance on recommended PPE for persons in direct contact with COVID-19 cases.
Review the Occupational Safety and Health Administration website and guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Staff evaluating and providing care for people with confirmed or suspected COVID-19 should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. Facilities without on-site health care capacity should make a plan for how they will ensure that suspected COVID-19 cases will be medically isolated, evaluated, tested (if indicated), and provided medical care. Contact and collaborate with your state, local, tribal, and territorial health departments for more specific guidance.
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Q. How can I lower the chance that people who are incarcerated will get COVID-19?
A. The best way to prevent illness among people who are incarcerated is to prevent exposure to the virus that causes COVID-19. Start by: • Staying informed about updates to CDC guidance via the CDC COVID-19 website. • Making sure people who are incarcerated are aware of COVID-19 symptoms and remind them to notify staff right away if they might be sick. • Posting information about and ensuring they use everyday preventive actions (such as washing hands, avoiding touching their eyes, nose, and mouth, covering their cough). • Stocking up and providing free access to soap (preferably liquid soap to promote use), tissues, and hand drying supplies, as well as hand sanitizer (where permitted based on security restrictions). • Conducting temperature checks and screening all new entrants, staff, and visitors for flu-like symptoms during the last 24 hours, and any contact they may have had with someone infected with COVID-19 in the last 14 days. • Offering flu shots to people who are incarcerated, as limiting cases of flu can help speed the identification of people with COVID-19. • Routinely cleaning and disinfecting surfaces and objects that are frequently touched.
How to prevent the spread of COVID-19 within my facility or from the local community into my facility
Q. How can I find out if the virus has spread to the local community close to my facility?
A. You can get up-to-date information about local COVID-19 activity by keeping in touch with your local and state public health officials, and keeping up-to-date with the CDC website.
Q. What steps should I take to protect my staff and people who are incarcerated if there is spread of COVID-19 in the local community close to my facility?
A. If COVID-19 is known to be spreading in the local community close to your facility, but there are no confirmed cases among people who are incarcerated, staff, or visitors who have been inside the facility within the past 14 days: • Implement operational actions: q Restrict non-essential transfers of people between facilities and systems. q Use alternative strategies to limit in-person court appearances where possible. q Consider suspending co-pays for incarcerated persons seeking medical evaluation for COVID-19 symptoms. q Require staff to stay home if they are sick. q Consider suspending visitation or offering non-contact visits only. q Do not allow non-essential vendors, volunteers, or tours into the facility. q Consider suspending work release programs. • Clean and disinfect the facility: q Use CDC recommendations for cleaning and disinfection during the COVID-19 response to routinely clean and disinfect surfaces and objects that are frequently touched, especially in common areas. q Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19.
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• Focus on good hygiene: q Remind staff, visitors, and people who are incarcerated to use everyday preventive actions (such as washing hands, avoiding touching their eyes, nose, and mouth, covering their cough). q Provide free access to soap (preferably liquid soap) and access to running water, hand dryers, tissues, and no-touch trash cans, when possible. q Continually restock hygiene supplies throughout the facility. q Consider increasing the number of staff and/or other people who are trained to clean common areas to ensure they are cleaned on a continual basis.
• Conduct screenings for symptoms and fever on all new entrants, staff, and visitors prior to entering the facility and follow guidance.
• Use options to increase social distancing (increasing the physical space between people in the facility, ideally at least 6 feet between people, regardless of whether or not they have symptoms): q Increase space between people who are incarcerated in holding cells and when in line. q Stagger mealtimes and time in recreation spaces. q Limit interactions in large group settings and group programs. q When possible, place beds at least 6 feet apart and have people sleep head-to-foot. q Find a separate space to check people for COVID-19 that is close to each housing unit instead of having people who are sick walk through the facility to be medically evaluated. q Remind staff to keep 6 feet apart from an individual with respiratory symptoms when possible.
• Communicate regularly: q Provide up-to-date information and remind and encourage people who are incarcerated and staff to report COVID-19 symptoms to staff right away.
Q. What should be included in my screening procedures for new entrants to the facility?
A. New entrants should undergo temperature screening in addition to the following verbal screening questions: • “Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Difficulty breathing?” q If yes, give them a clean, disposable facemask, separate them from others, and notify medical staff. Ensure only trained personnel wearing recommended PPE have contact with individuals who have or may have COVID-19. q Facilities without on-site healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care. • “In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?” q If yes (but no COVID-19 symptoms): Quarantine the individual and monitor for symptoms two times per day for 14 days. During quarantine, facility staff should follow guidance on quarantine, and monitor the person for symptoms two times per day for 14 days. q Facilities without on-site health care staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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Q. What is a safe way to perform temperature checks?
A. Staff performing temperature checks should follow these steps: 1. Wash hands thoroughly.
2. Put on a clean, disposable facemask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves.
3. Check the person’s temperature.
• If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check.
• If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control.
4. Remove and discard PPE.
5. Wash hands thoroughly.
Q. Should I allow visitors into the facility if there is spread of COVID-19 in the community close to my facility?
A. If there is spread of COVID-19 in the community close to your facility, consider suspending contact visits. If contact visits continue, all potential visitors should be asked: • “Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Difficulty breathing?”
• “In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?”
Staff should also perform temperature checks for all visitors and volunteers. Any visitor who answers yes to one of these questions or who declines screening should not be allowed into the facility. When possible, facilities should let potential visitors know about these rules before they travel to the facility. Facilities can place posters in visiting areas and ask people who are incarcerated to inform their family members and visitors about these rules.
Q. How should the facility be cleaned to limit spread of the virus? A. To limit the spread of the virus that causes COVID-19, routinely clean and disinfect surfaces and
objects that are touched often. Read CDC guidance on cleaning and disinfecting to learn more. This may include cleaning objects and surfaces not ordinarily cleaned daily, such as doorknobs, light switches, and countertops. Clean with the cleaners typically used. Use all cleaning products according to the directions on the label. For disinfection, most common EPA-registered household disinfectants should be effective. A list of products that are EPA-approved for use against the virus that causes COVID-19 is available here.
How to manage a confirmed COVID-19 case in the facility
Q. What should I do if a person who is incarcerated in my facility may have COVID-19? A. If you think someone who is incarcerated in the facility is sick with COVID-19 (see COVID-19
symptoms), activate your emergency plan and notify local public health officials. Ensure that the sick person is wearing a clean, disposable facemask, and separate the sick person from others, ideally within an individual housing space and bathroom. Provide them with tissues for when they cough or sneeze, and a lined trash receptacle when possible.
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Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. Facilities without on-site healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care. Ensure only trained personnel wearing recommended personal protective equipment (PPE) have contact with or transport individuals who have or may have COVID-19.
People who are incarcerated and have COVID-19 should be placed under medical isolation in a separate room, ideally with solid walls and a solid door that closes fully. If not available, refer to the full guidance document for other options for medical isolation. If multiple people become ill with COVID-19:
• Make every effort to house each ill person individually, with their own bathroom. Refer to the full guidance document for additional options if individual spaces are not available.
• Prioritize those at high risk for complications of COVID-19 (older adults, people with severe underlying chronic medical conditions) for individual spaces that are available.
To prevent further spread: • Use options for virtual court appearances, if possible. • Suspend group gatherings. • Limit non-medical transfers of people within and between facilities. Ensure that anyone transferred out is screened for symptoms and contact with a COVID-19 case before leaving the facility. • Ensure that release planning includes screening for COVID-19 symptoms and contact with a case. Coordinate with local public health officials if releasing a symptomatic person to the community. • Use multiple social distancing strategies. • Handle laundry and food items of possible or confirmed cases of COVID-19 with recommended PPE. • Suspend visitation or offer non-contact visitation only. • Consider quarantining all new entrants for 14 days before they enter the facility. (Make sure that new entrants under quarantine are housed separately from other incarcerated people already under quarantine due to contact with a COVID-19 case.) • If releasing someone to a community facility (e.g., a homeless shelter), contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, and coordinate with local public health officials.
Provide clear information to staff and people who are incarcerated about the presence of COVID-19 cases within the facility. Close contacts of the sick person (who have been within 6 feet of the sick person or had direct contact with infectious droplets, such as from a cough or squeeze) should be placed under quarantine for at least 14 days. Follow CDC guidance on quarantining close contacts of people with COVID-19.
If separate spaces for individual quarantined people are not available, refer to the full guidance document for other options. Monitor symptoms twice per day and move anyone developing symptoms to medical isolation right away (after ensuring they are wearing a clean, disposable facemask). Quarantined people at high risk for complications of COVID-19 (older adults, people with severe underlying chronic medical conditions) should not be housed with other quarantined people if at all possible.
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Q. What should I do if one of my staff might have COVID-19?
A. If you think someone on your staff is sick with COVID-19 (see COVID-19 symptoms), activate your emergency plan and notify public health officials. Give them a clean, disposable facemask and send them home right away. Close contacts of the sick person (who have been within 6 feet of the sick person or have had direct contact with infectious droplets, such as from a cough or squeeze) should self-quarantine at for 14 days home and follow CDC recommended steps for people who are sick with COVID-19 symptoms.
Q. What is the best way to clean and disinfect my facility after a confirmed case of COVID-19?
A. Follow guidance for cleaning and disinfecting rooms and areas where a person with suspected or confirmed COVID-19 have visited, including transport vehicles. • Ensure staff or people who are incarcerated wear appropriate PPE when cleaning the facility and handling food service items of people with possible or confirmed COVID-19. Laundry of a person with COVID-19 may be washed with the laundry of other individuals. Individuals handling laundry should wear recommended PPE, should not shake the laundry, and should clean their hands often to prevent spread of COVID .
Q. Should I allow visitors into the facility?
A. If there is a case of COVID-19 in your facility, suspend contact visitation programs. Instead, use virtual visitation when possible.
Q. What do medical staff need to know about caring for a person with COVID-19 in my facility?
A. Facilities should ensure that incarcerated individuals receive medical evaluation and treatment at the first sign of COVID-19 symptoms. Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. Facilities without on-site healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care. Facilities should have a plan in place to safely transfer persons with complications from COVID-19 to a local hospital if they require care beyond what the facility is able to provide. When evaluating and treating persons with symptoms of COVID-19 who do not speak English, provide a translator when possible. Spanish and Simplified Chinese materials are available for those who need them
Q. What steps do I need to take to implement quarantine in my facility?
A. Close contacts of a sick person (who have been within about 6 feet of the sick person or have had direct contact with infectious droplets, such as from a cough or squeeze) should be placed under quarantine for 14 days to determine if they develop symptoms. CDC has developed guidance on quarantining close contacts of people with COVID-19. Be sure to monitor symptoms twice a day and move anyone developing symptoms to medical isolation right away, after ensuring that they are wearing a clean, disposable facemask. Individuals under quarantine should stay within the quarantine space, including when eating their meals, using the bathroom, and receiving medical evaluation. Laundry of people in quarantine can be washed with the laundry of others. Individuals handling laundry should wear recommended PPE, should not shake the laundry, and should clean their hands often. • Ideally, people under quarantine due to contact with a COVID-19 case should be housed individually. If separate spaces in a facility are not available, refer to CDC’s full guidance document for correctional and detention centers for other options. People at high risk for complications of
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COVID-19 (older adults, people with severe underlying chronic medical conditions) should not be housed with other quarantined people if at all possible. Facilities without enough space or without onsite healthcare capacity should coordinate with local public health officials.
• Individuals in quarantine can be released from quarantine back to their previous housing arrangement in the facility if they have not developed symptoms during the 14-day time period.
FAQs for Staff at Correctional and Detention Facilities
Q. How can I lower the chance that I will get COVID-19?
A. The best way to prevent illness is to take steps to avoid being exposed to this virus. Start by ensuring you and others around you use everyday preventive actions (such as washing hands often, avoiding touching your eyes, nose, and mouth, and covering your cough). Read How to Protect Yourself to l earn more. • If there is spread of COVID-19 in the community close to the facility, you will be asked daily about symptoms over the last 24 hours and any contact you had with someone infected with COVID-19 in the last 14 days. Your temperature will also be checked daily.
Q. Do I have a greater chance of getting COVID-19?
A. Staff and people incarcerated in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19, because of the close living arrangements inside the facility. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads. This is why washing your hands regularly and avoid close contact with other people when possible prevents illness.
Q. What should I do if I think I may be sick with COVID-19?
A. If you think you have been exposed to COVID-19 and develop a fever or symptoms of respiratory illness, such as cough or difficulty breathing, stay home. If you are at work, alert your supervisor right away and go home. Read What To Do if You Are Sick to learn more.
Q. What does it mean to be in quarantine?
A. Anyone who has close contact with a person with COVID-19 will need to stay away from other people for at least 14 days to see whether symptoms develop. If you are a close contact of a person with COVID-19, you should self-quarantine at home by staying in a separate room away from others. Read Caring for Yourself at Home and What To Do if You Are Sick to learn more.
FAQs for People Who Are Incarcerated at Correctional and Detention Facilities
Q. How can I lower the chance that I will get COVID-19?
A. The best way to prevent illness is to take steps to avoid being exposed to this virus. Start by ensuring you and others around you use everyday preventive actions (such as washing hands often, avoiding touching your eyes, nose, and mouth, and covering your cough). Read How to Protect Yourself to learn more.
Q. Do I have a greater chance of getting COVID-19? A. People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19,
because of close living arrangements with other people. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes.
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These droplets can land in the mouths or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs. It is possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes; however, this is not the most likely way the virus spreads.
Q. What should I do if I think I may be sick with COVID-19?
A. If you think you have been exposed to COVID-19 and develop a fever or symptoms of respiratory illness, such as cough or difficulty breathing, alert facility staff right away to make sure you receive medical care and protect the people around you from being exposed to the virus.
Q. What does it mean to be in quarantine?
A. Anyone who has close contact with a person with COVID-19 will need to stay away from other people for at least 14 days to make sure they aren’t sick as well. This means that they will be placed in a room separate from others, or just with other people who have also been exposed to the same sick person. During this time, they will be checked for COVID-19 symptoms. If testing is available, a person in quarantine may be tested several times until medical staff are sure they do not have the virus.
Q. Is it ok for people to visit me?
A. Anyone who has had flu-like symptoms in the last 24 hours or has been in contact with someone who has or is suspected to have COVID-19 in last 14 days should not visit a correctional or detention facility. All visitors will be screened for symptoms and contact with someone with COVID-19. Staff will also perform temperature checks on all visitors. Visitors should contact the facility about their rules on visits before they travel. If a person in the facility has COVID-19, visitors may not be allowed to enter the facility. Instead, non-contact visits can be used, when possible.
FAQs for Family Members of People Who Are Incarcerated at Correctional and Detention Facilities
Q. Do people who are incarcerated have a greater chance of getting COVID-19?
A. People in correctional and detention facilities are at greater risk for illnesses, such as COVID-19 because of their close living arrangements with other people. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs. It is possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes; however, this is not the most likely way the virus spreads.
Q. What does it mean if someone I know is in quarantine?
A. Anyone who has close contact with a person with COVID-19 will need to put into quarantine for at least 14 days. This means that they will be placed in a room separate from others, until staff are sure that they don’t have symptoms. During this time, they will be checked for COVID-19 symptoms twice a day. If testing is available, a person in quarantine may be tested several times until medical staff are sure they do not have the virus.
Q. Is it ok for me to visit?
A. Anyone who has had flu-like symptoms in the last 24 hours or has been in contact with someone who has or is suspected to have COVID-19 in last 14 days should not visit a correctional or detention facility. Staff may screen and perform temperature checks on all visitors. Visitors should contact the facility about their rules on visits before they travel to a facility. If there is a person in the facility who has COVID-19, visitors may not be allowed to enter the facility. Some facilities may arrange for noncontact visits when possible.
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EDITORIAL

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Hypertension and COVID-19

Ernesto L. Schiffrin,1, John M. Flack,2 Sadayoshi Ito,3 Paul Muntner,4 and R. Clinton Webb5

The world is currently suffering from the outbreak of a pandemic caused by the severe acute respiratory syndrome coronavirus SARS-CoV-2 that causes the disease called COVID-19, first reported in Wuhan, Hubei Province, China on 31 December 2019.1 As of 29 March 2020, there have been 732,153 confirmed cases of COVID-19 reported worldwide, with 34,686 deaths.2 The clinical and epidemiological features of COVID-19 have been repeatedly published in the last few weeks. Interestingly, specific comorbidities associated with increased risk of infection and worse outcomes with development of increased severity of lung injury and mortality have been reported. The most common comorbidities in one report were hypertension (30%), diabetes (19%), and coronary heart disease (8%).3 Another report showed that the most frequent comorbidities in patients with COVID-19 who developed the acute respiratory distress syndrome were hypertension (27%), diabetes (19%), and cardiovascular disease (6%).4 The frequency with which
Correspondence: Ernesto L. Schiffrin (ernesto. schiffrin@mcgill.ca, http://ladydavis.ca/en/ ernestoschiffrin).
1Lady Davis Institute for Medical Research, and Department of Medicine, Sir Mortimer B. DavisJewish General Hospital, McGill University, Montreal, Quebec, Canada; 2Department of Internal Medicine, Southern Illinois University School of Medicine, Springfield, Illinois, USA; 3Division of Nephrology, Endocrinology and Hypertension, Tohoku University, Sendai, Japan; 4Department of Epidemiology, University of Alabama, Birmingham, Alabama, USA; 5Department of Cell Biology and Anatomy, and Cardiovascular Translational Research Centre, University of South Carolina, Columbia, South Carolin, USA.
Initially submitted March 30, 2020; online publication April 6, 2020.
doi:10.1093/ajh/hpaa057
© American Journal of Hypertension, Ltd 2020. All rights reserved. For Permissions, please email: journals.permissions@oup.com

COVID-19 patients are hypertensive is not entirely surprising nor does it necessarily imply a causal relationship between hypertension and COVID-19 or its severity, since hypertension is exceedingly frequent in the elderly, and older people appear to be at particular risk of being infected with SARS-CoV-2 virus and of experiencing severe forms and complications of COVID-19.
It is unclear whether uncontrolled blood pressure is a risk factor for acquiring COVID-19, or whether controlled blood pressure among patients with hypertension is or is not less of a risk factor. However, several organizations have already stressed the fact that blood pressure control remains an important consideration in order to reduce disease burden, even if it has no effect on susceptibility to the SARS-CoV-2 viral infection.5 Nevertheless, the fact that hypertension, and other forms of cardiovascular disease also found frequently in COVID-19 patients, are often treated with angiotensin-converting enzyme (ACE) inhibitors and angiotensin receptor blockers (ARBs), and that SARS-CoV-2, the virus causing COVID-19, binds to ACE2 in the lung to enter cells,6,7 has raised questions regarding the possibility that these agents could either be beneficial or actually nefarious in patients treated with them with respect to susceptibility to acquire COVID-19 or in relation to its outcome. It has been shown that ACE inhibitors and ARBs increase ACE2,8,9 which could theoretically increase the binding of SARS-Cov-2 to the lung and its pathophysiological effects leading to greater lung injury. However, ACE2 has actually been hown to protect from lung injury in experimental studies.10 ACE2 forms angiotensin 1–7 from angiotensin II, and thus reduces the inflammatory action of angiotensin II, and increases the potential for the anti-inflammatory effects of angiotensin 1–7. Accordingly, by reducing either

formation of angiotensin II in the case of ACE inhibitors, or by antagonizing the action of angiotensin II by blocking angiotensin AT1 receptors in the case of ARBs,11,12 these agents could actually contribute to reduce inflammation systemically and particularly in the lung, heart, and kidney. Thus, ACE inhibitors and ARBs could diminish the potential for development of either acute respiratory distress syndrome, myocarditis or acute kidney injury, which can occur in COVID19 patients. In fact, ARBs have been suggested as a treatment for COVID19 and its complications.13 Increased soluble ACE2 in the circulation could bind SARS-CoV-2, reducing its ability to injure the lungs and other ACE2 bearing organs.14 Using recombinant ACE2 could be a therapeutic approach in COVID-19 to reducing viral load by binding circulating SARS-CoV-2 viral particles and reducing their potential attachment to tissue ACE2. None of these possibilities have however been demonstrated in patients yet.
In conclusion, there is as yet no evidence that hypertension is related to outcomes of COVID-19, or that ACE inhibitor or ARB use is harmful, or for that matter beneficial, during the COVID-19 pandemic. Use of these agents should be maintained for the control of blood pressure, and they should not be discontinued, at least on the basis of current evidence at this time.
REFERENCES
1. Zhu N, Zhang D, Wang W, Li X, Yang B, Song J, Zhao X, Huang B, Shi W, Lu R, Niu P, Zhan F, Ma X, Wang D, Xu W, Wu G, Gao GF, Tan W; China Novel Coronavirus Investigating and Research Team. A novel coronavirus from patients with pneumonia in China, 2019. N Engl J Med 2020; 382:727–733.
2. Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University. https://gisanddata.maps.arcgis.

American Journal of Hypertension  33(5)  May 2020  373

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Editorial

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bda7594740fd402994. Accessed 30 March 2020.

3. Zhou F, Yu T, Du R, Fan G, Liu Y, Liu Z,

Xiang J, Wang Y, Song B, Gu X, Guan L, Wei Y,

Li H, Wu X, Xu J, Tu S, Zhang Y, Chen H,

Cao B. Clinical Course and Risk Factors for

Mortality of Adult Inpatients With COVID-

19 in Wuhan, China: A Retrospective Cohort

Study. Lancet. 2020; 395:1054–1062.

4. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S,

Huang H, Zhang L, Zhou X, Du C, Zhang Y,

Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X,

Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C,

Zheng J, Song Y. Risk factors associated with

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2019 pneumonia in Wuhan, China. JAMA

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(doi:10.1001/jamainternmed.2020.0994).

5. HFSA/ACC/AHA Statement Addresses

Concerns Re: Using RAAS Antagonists in

COVID-19.

https://professional.heart.org/

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374  American Journal of Hypertension  33(5)  May 2020

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 Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3770 Page 1 of 51

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Petitioners-Plaintiffs, by and through undersigned counsel, hereby move,
pursuant to Rules 23(b)(1), 23(b)(2) and 23(c)(4) of the Federal Rules of Civil Procedure, 28 U.S.C. §§ 2241 and 2243, and the Court’s habeas authority, for the entry of an Order certifying this matter as a class action and designating undersigned counsel as class counsel. The grounds for this motion are set forth in the Brief in Support of Petitioners-Plaintiffs’ Motion for Class Certification, filed herewith, and the accompanying Declaration in support.
WHEREFORE, Petitioners-Plaintiffs respectfully move this Court to: 1. Certify the class and subclass as defined in the accompanying brief
pursuant to Rule 23(b)(1) or comparable habeas authority; 2. Certify the class and subclass as defined in the accompanying brief
pursuant to Rule 23(b)(2) or comparable habeas authority;

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3771 Page 2 of 51
3. In the alternative, certify the class and subclass under Rule 23(c)(4) or comparable habeas authority for resolution of the following issues: a. Common factual questions related to current practices to prevent and manage coronavirus infections at Calhoun. b. Common factual questions related to what practices are necessary to prevent and manage coronavirus infections at Calhoun; c. Whether continued detention in civil immigration custody at the Calhoun County Correctional Facility of members of the class violates the Due Process Clause, and what standard should be applied to answer that question; and d. Whether continued detention in civil immigration custody at the Calhoun County Correctional Facility of members of the subclass violates the Due Process Clause, and what standard should be applied to answer that question.
4. Designate undersigned counsel as class counsel. Pursuant to the local rules, Plaintiffs have conferred with counsel for Defendants, who oppose this motion, and have contacted counsel for separatelyrepresented Plaintiff Janet Malam, who has not responded as of the time of filing.
2

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3772 Page 3 of 51

Dated: June 14, 2020

Respectfully submitted,
_/_s_/_M__ir_ia_m__J_._A__u_k_er_m__a_n____ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* ACLU Foundation Immigrants’
Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo ACLU Foundation Immigrants’
Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

3

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3773 Page 4 of 51
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
_/_s/_J_e_an_n_i_e_S_. _R_h_ee_____ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com
Jonathan M. Silberstein-Loeb Oleg M. Shik* Katherine W. Gadsden* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com oshik@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming
4

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3774 Page 5 of 51

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff,

- against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al., Respondent-Defendants.

BRIEF IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3775 Page 6 of 51
TABLE OF CONTENTS Page
INTRODUCTION .....................................................................................................1 BACKGROUND AND FACTS ................................................................................1 ARGUMENT .............................................................................................................4 I. Legal Standard for Class Certification ............................................................4 II. Proposed Class and Subclass Definitions........................................................7 III. Plaintiffs Satisfy the Rule 23(a) Requirements. ..............................................9
A. Plaintiffs Satisfy Rule 23(a)(1). ............................................................9 B. Plaintiffs Satisfy Rule 23(a)(2). ..........................................................10 C. Plaintiffs Satisfy Rule 23(a)(3). ..........................................................13 D. Plaintiffs Satisfy Rule 23(a)(4). ..........................................................14 IV. Plaintiffs Satisfy the Rule 23(b) Requirements. ............................................15 A. Plaintiffs Satisfy Rule 23(b)(1). ..........................................................15 B. Plaintiffs Satisfy Rule 23(b)(2). ..........................................................20 V. In the Alternative, the Court Can Certify Issue Classes under Fed. R. Civ. P. 23(c)(4). .............................................................................................23 VI. Section 1252(f)(1) Presents No Obstacle to Certification.............................27 VII. The Class and Subclass Are Appropriately Defined. ....................................30 CONCLUSION ........................................................................................................35
i

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3776 Page 7 of 51

TABLE OF AUTHORITIES

CASES

Page(s)

Adair v. England, 209 F.R.D. 5, 12 (D.D.C. 2002) ...................................................................17, 18

Albino-Martinez v. Adducci, et al., Case No. 20-10893 (E.D. Mich. Apr. 29, 2020), ECF No. 30 ...........................18

Alcantara v. Archambeault, No. 20CV0756 DMS (AHG), 2020 WL 2315777, *5–7 (S.D. Cal. May 1, 2020).....................................................................................13, 22, 32, 34

Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003), opinion withdrawn on denial of reh’g sub. nom. Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005), as amended on reh’g (Oct. 20, 2005) .............................................................................................................17

Alli v. Decker, 650 F.3d 1007, 1013–15 (3d Cir. 2011) .......................................................29, 30

Awshana v. Adducci, et al., Case No. 20-10699 (E.D. Mich. Apr. 29, 2020), ECF No. 25 ...........................17

Ball v. Kasich, No. 2:16-CV-282, 2017 WL 2061398, at *1 (S.D. Ohio May 11, 2017) ...................................................................................................................35

Barry v. Corrigan, 79 F. Supp. 3d 712, 731 (E.D. Mich. 2015), aff’d sub nom. Barry v. Lyon, 834 F.3d 706 (6th Cir. 2016) ....................................................................10

Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) ......................................................................13

Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991)...................................................................17

ii

Case 5:20-cv-10829-JEL-APP ECF No. 112 filed 06/14/20 PageID.3777 Page 8 of 51
Bridging Cmtys. Inc. v. Top Flight Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016) ..................................................................13
Brown v. Plata, 563 U.S. 493, 506 (2011)....................................................................................20
Busby v. Bonner, No. 20-cv-2359-SHL, slip op. at 17–18 (W.D. Tenn. June 10, 2020) ...................................................................................................................22
Cameron v. Bouchard, __ F. Supp. 3d __, No. 20-10949, 2020 WL 2569868, at *16, *19 (E.D. Mich. May 21, 2020).........................................................................4, 6, 22
Carter v. Arkema, Inc., No. 3:13-CV-1241-JHM, 2018 WL 1613787, at *7 (W.D. Ky. Apr. 3, 2018) ...............................................................................................................10
United States v. City of New York, No. 07-CV-2067 (NGG) (RLM), 2011 WL 3174084, at *36 (E.D.N.Y. 2011)..................................................................................................26
Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir 2016) .......................................................................31
Dearduff v. Washington, 330 F.R.D. 452, 472, 474 (E.D. Mich. 2019) ...............................................20, 27
Dodson v. CoreCivic, No. 3:17-cv-00048, 2018 WL 4776081, at *5 (M.D. Tenn. Oct. 3, 2018) .............................................................................................................17, 35
Does I v. Gap, Inc., No. CV-01-0031, 2002 WL 1000073, at *5 (D. N. Mar. I. May 10, 2002) ...................................................................................................................17
Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 544 (N.D. Cal. 2012)................................................................26
First Federal of Mich. v. Barrow, 878 F.2d 912, 919 (6th Cir. 1989) ......................................................................16
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Fofana v. Albence, et al., Case No. 20-10869 (E.D. Mich. Apr. 15, 2020), ECF No. 15 ...........................18
Fraihat v. ICE, __ F. Supp. 3d __, No. EDCV 19-1546 JGB, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) ............................................................................passim
Gomes v. Acting Secretary, No. 20-CV-453-LM, 2020 WL 2113642, at *3–5 (D.N.H. May 4, 2020) .......................................................................................................22, 29, 32
Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 F.R.D. 234, 250 (E.D. Cal. 2019) ..................................................................7
Gooch v. Life Inv’rs Co. of Am., 672 F.3d 402, 428 (6th Cir. 2012) ..........................................................20, 21, 27
Hamama v. Adducci, 912 F.3d 869, 880 (6th Cir. 2018) (Hamama I) ...........................................28, 29
Hamama v. Adducci, 946 F.3d 875, 876 (6th Cir. 2020) (Hamama II) ................................................28
Harris v. Nelson, 394 U.S. 286, 291, 299 (1969)..............................................................................6
Hill v. Snyder, 308 F. Supp. 3d 893, 914 (E.D. Mich. 2018) .....................................................13
Ingles v. City of New York, No. 01 Civ. 8279(DC)., 2003 WL 402565, at *4 (S.D.N.Y. 2003) ...................31
Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 625 (N.D. Ill. 2007)........................................................10
Martin v. Behr Dayton Thermal Products, 896 F.3d 405, 409–10, 413–14 (6th Cir. 2018) ........................................5, 24, 25
Martinez-Brooks v. Easter, 2020 WL 2405350, at *29–30 (D. Conn. May 12, 2020) ....................................6
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McBride v. Mich. Dep’t of Corr., No. 15-11222, 2017 WL 3097806, *1, *8 (E.D. Mich. June 30, 2017) ...................................................................................................................35
McReynolds v. Merill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 492 (7th Cir. 2012), abrogated on other grounds by Phillips v. Sheriff of Cook Cty., 848 F.3d 541, 559 (7th Cir. 2016)...................26
United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 n.5 (7th Cir. 1976) ..................................................................4
Murai v. Adducci, et al., Case No. 20-10816 (E.D. Mich. May 18, 2020), ECF No. 15 ...........................17
Napier v. Gertrude, 542 F.2d 825, 827 n.2 (10th Cir. 1976) ................................................................6
Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358, 380 (E.D. Ark. 2007) ...............................................................26
Nielsen v. Preap, 139 S. Ct. 954, 962 (2019)..................................................................................29
NorCal Tea Party Patriots v. Internal Revenue Serv., No. 1:13-CV-341, 2016 WL 223680, at *6 (S.D. Ohio Jan. 19, 2016) ...................................................................................................................10
Perez-Perez v. Adducci, et al., Case No. 20-10833 (E.D. Mich. May 9, 2020), ECF No. 16 .............................18
Phillips v. Philip Morris Cos., Inc., 298 F.R.D. 355, 362 (N.D. Ohio 2014) ..........................................................9–10
Quadrelli v. Moniz, No. 20-cv-10685-ADB, 2020 WL 3051778, at *7–8 (D. Mass. June 8, 2020)...........................................................................................23, 28, 29
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 (2d Cir. 2001), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)........................................26
Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) ..................................................................29
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Roman v. Wolf, Ed CV 20-00768, slip op. at 7 (C.D. Cal. Apr. 23, 2020) ....................................7
Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 374 (1992)....................................................................................20
Savino v. Souza, __ F. Supp. 3d __, No. CV 20-10617-WGY, 2020 WL 1703844, at *5, *7–8 (D. Mass. Apr. 8, 2020) ................................................................passim
Senter v. Gen. Motors Corp., 532 F.2d 511, 525, 525 n.32 (6th Cir. 1976) ................................................14, 26
United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974) .....................................................................6
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010)......................................................................................5
Snead v. CoreCivic of Tennessee, LLC, No. 3:17-CV-0949, 2018 WL 3157283, at *16 (M.D. Tenn. June 27, 2018) .......................................................................................................34, 35
Streicher v. Prescott, 103 F.R.D. 559, 561 (D.D.C. 1984) .....................................................................6
Thaer v. Adducci, Case No. 20-10857 (E.D. Mich. Apr. 21, 2020), ECF No. 9 .............................18
In re Wal-Mart ATM Fee Notice Litig., 2015 WL 6690412, at *7 (W.D. Tenn. Nov. 3, 2015)..........................................9
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 351, 359 (2011)........................................................11, 12, 26
In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litig., 72 F.3d 838, 850, 852, 853, 858 (6th Cir. 2013) ................................4, 11–13, 27
Wilson v. Williams, No. 20-3447, 2020 WL 3056217 (6th Cir. June 9, 2020) ....................................6
Yanes v. Martin, No. 1:20-cv-00216-MSM-PAS, Dkt. 21 (D.R.I. May 20, 2020) .......................22
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Zaya v. Adducci, No. 20-10921, 2020 WL 1903172, at *1 (E.D. Mich. Apr. 18, 2020) ...............................................................................................................1, 18
Zepeda Rivas v. Jennings, Case No. 20-cv-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020) ...............................................................................................12, 22
Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1193 (9th Cir. 2001) ..................................................................16
STATUTES 8 U.S.C. §§ 1225, 1226 and 1231 ............................................................................28 8 U.S.C. § 1252(f)(1) .....................................................................................5, 27–30 28 U.S.C. § 2241....................................................................................................1, 2 28 U.S.C. § 2243....................................................................................................1, 6 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 19(a).................................................................................................16 Fed. R. Civ. P. 23 ..............................................................................................passim Fed. R. Civ. P. 23(a).................................................................................1, 5, 7, 9, 25 Fed. R. Civ. P. 23(a)(1)........................................................................................9–10 Fed. R. Civ. P. 23(a)(2)......................................................................................10–13 Fed. R. Civ. P. 23(a)(3)......................................................................................13–14 Fed. R. Civ. P. 23(a)(4)......................................................................................14–15 Fed. R. Civ. P. 23(b) ............................................................................5, 7, 15, 24, 25 Fed. R. Civ. P. 23(b)(1).....................................................................................passim Fed. R. Civ. P. 23(b)(2).....................................................................................passim Fed. R. Civ. P. 23(b)(3)............................................................................................25
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Fed. R. Civ. P. 23(c)(4).....................................................................................passim Fed. R. Civ. P. 23(d) ..................................................................................................7 OTHER AUTHORITIES 2 Newberg on Class Actions § 25.20 (4th ed.).........................................................20 3 Newberg on Class Actions §§ 4:11, 7:29 (5th ed.) ...........................................7, 19 Groups at Higher Risk for Severe Illness, CENTERS FOR DISEASE
CONTROL & PREVENTION (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last accessed June 14, 2020) ...................................................................................................................32 Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/downloads/community-mitigation-strategy.pdf (last accessed June 14, 2020).....................................................................................................32 People Who Are at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html (last accessed June 14, 2020) ..................................................................................................................32
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INTRODUCTION This action arises from Defendants’ failure to protect noncitizens civilly detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Calhoun County Correctional Center (“Calhoun”) from contracting COVID-19 and the resulting risk of death or serious physical injury while detained. Plaintiffs seek to certify a class of all noncitizens held by ICE at Calhoun, and a subclass of medically vulnerable individuals who have one or more factors placing them at heightened risk for serious illness or death if exposed to COVID-19. Certification is warranted under Federal Rule of Civil Procedure 23, 28 U.S.C. §§ 2241 and 2243, and the Court’s habeas authority. The class and subclass meet the requirements of Federal Rule of Civil Procedure 23(a), as well as 23(b)(1) and 23(b)(2). In the alternative, the Court can initially certify an issue class and subclass pursuant to Rule 23(c)(4).
BACKGROUND AND FACTS Due to the grave dangers Plaintiffs face in detention, this Court has thus far ordered release of seven individuals from Calhoun. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.532; Apr. 9 Op. & Order, Dkt. 29, PageID.629; May 12 Op. & Order, Dkt. 68, PageID.1903; May 23 Op. & Order, Dkt. 90, PageID.2704; Zaya v. Adducci, 2020 WL 1903172, at *1 (E.D. Mich. Apr. 18, 2020). Although their ages and underlying medical conditions vary, the Court has adopted common factual findings

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and applied a common analytical framework in each case, which shows exactly why
class certification is warranted.
The Court’s common factual findings include:
• “COVID-19 is a global pandemic of unparalleled scope, and the public health evidence . . . suggests that communal confinement cannot ensure detainees reasonable safety from infection.” Apr. 17 Op. & Order, Dkt. 33, PageID.722.
• As Defendants have conceded, social distancing of at least six feet is impossible at Calhoun. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.541.
• “[E]ven the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease.” Apr. 6 Am. Op. & Order, Dkt. 23, PageID.554.
• Medically vulnerable individuals remain “at an unreasonable and substantial risk of infection, and consequently of dire health consequences, including death.” Apr. 17 Op. & Order, Dkt. 33, PageID.715. The “stark reality [is] that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection.” May 12 Op. & Order, Dkt. 68, PageID.1915.
• “The emergence of COVID-19 at the Calhoun County Correctional Facility transforms a generalized yet substantial risk into a specific and immediate risk.” May 12 Op. & Order, Dkt. 68, PageID.1914-15.
• Due to the rapid spread of COVID-19 in detention facilities, release of Plaintiffs promotes public health. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.572.
The Court also applied the same legal framework in each case, concluding,
inter alia, that:
• The Court has jurisdiction under both 28 U.S.C. § 2241 and 28 U.S.C.
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§ 1331; sovereign immunity does not apply; and no other statute deprives the Court of jurisdiction. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.542– 549; Apr. 9 Op. & Order, Dkt. 29, PageID.632; May 12 Op. & Order, Dkt. 68, PageID.1910–11.
• The Court has yet to decide what standard applies to Plaintiffs’ claims, finding in each instance to date that Plaintiffs satisfy the most stringent objective/subjective deliberate indifference test. Apr. 9 Op. & Order, Dkt. 29, PageID.641, n.1; Apr. 17 Op. & Order, Dkt. 33, PageID.725; May 12 Op. & Order, Dkt. 68, PageID.1930–32; May 23 Op. & Order, Dkt. 90, PageID.2725 n.1.
• “[A]ny response short of authorizing release” for those “whose underlying health conditions expose [them] to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk.” Apr. 17 Op. & Order, Dkt. 33, PageID.722–23.
• Plaintiffs have met the objective prong of the deliberate indifference test because so long as plaintiffs remain detained, they are exposed to a substantial risk of serious harm. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.566; May 12 Op. & Order, Dkt. 68, PageID.1934–41 (rejecting Defendants’ argument re imminence of harm, compliance with policies, and societal toleration of risk).
• Plaintiffs have met the subjective prong of the deliberate indifference test because, in light of Plaintiffs’ underlying health conditions and age, Defendants cannot ensure their reasonable safety even with precautionary measures. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.568. Moreover, “[b]ecause Defendants have not taken specific precautions to protect medically vulnerable detainees, the Court finds that Defendants have acted unreasonably and have disregarded the risk of COVID-19.” May 12 Op. & Order, Dkt. 68, PageID.1942. “Defendants are aware that medically vulnerable detainees require additional protection, but nonetheless have declined to act.” Id. at 1947–48.
• For medically vulnerable individuals, “given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect [their] Fifth Amendment rights. Release from
3

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custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it.” Apr. 6 Am. Op. & Order, PageID.525; Apr. 17 Op. & Order, Dkt. 33, PageID.708–09 (same). “[T]he presence of a risk factor for severe illness and/or death translates a high risk of infection into a high risk of irreparable injury and a substantial risk of serious harm such that no conditions of confinement at the Calhoun County Correctional Facility can ensure a civil detainee’s reasonable safety.” May 23 Op. & Order, Dkt. 90, PageID.2711.
• Where continued detention violated the Constitution, immigration statutes requiring detention must give way. Apr. 6 Am. Op. & Order, Dkt. 23, PageID.573.
These findings apply not just to the seven people released so far, but also to
all noncitizens or all medically vulnerable noncitizens detained at Calhoun.
ARGUMENT I. Legal Standard for Class Certification
A district court has broad discretion to decide whether to certify a class. In re
Whirlpool Corp. Front-Loading Washer Prods. Liability Litig., 72 F.3d 838, 850
(6th Cir. 2013). Rule 23 of the Federal Rules of Civil Procedure governs certifi-
cation of classes seeking damages, declaratory relief, or injunctive relief. Where a
class seeks a writ of habeas corpus, such a “proceeding is merely analogous to a Rule
23 class action, and . . . the provisions of Rule 23 need not be complied with
precisely.” Cameron v. Bouchard, __ F. Supp. 3d __, No. 20-10949, 2020 WL
2569868, at *16 (E.D. Mich. May 21, 2020) (quoting United States ex rel. Morgan
v. Sielaff, 546 F.2d 218, 221 n.5 (7th Cir. 1976)), later opinion stayed on other
grounds, No. 20–3547, 2020 WL 3100187, at *2–3 (6th Cir. June 11, 2020). Here,
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Plaintiffs primarily seek class-wide declaratory and habeas relief. 1 Class certification is thus proper if the Plaintiffs meet the Rule 23 standards with respect to their claims for declaratory relief, or the more flexible representative habeas standards with respect to habeas relief.
Under the familiar and traditional Rule 23 analysis, the party seeking certification must satisfy the four requirements of Rule 23(a) and at least one of the three requirements in Rule 23(b). Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). In addition, under Rule 23(c)(4), “[w]hen appropriate, a class action may be brought or maintained as a class action with respect to particular issues.” Martin v. Behr Dayton Thermal Products, 896 F.3d 405, 413 (6th Cir. 2018). Plaintiffs here seek certification under both Rule 23(b)(1) and (b)(2). In the alternative, Plaintiffs seek issue class certification under Rule 23(c)(4). Issue class certification is similar to class-wide declaratory relief, and provides an alternative path for the class-wide determination of common issues, particularly if the Court wishes, for case management purposes, to decide certain
1 As discussed in Section VI, the Sixth Circuit has interpreted 8 U.S.C. § 1252(f)(1) to bar class-wide injunctive relief that would “enjoin or restrain” certain provisions of the Immigration and Naturalization Act. Nothing in the Plaintiffs’ requests countermand that position. This Court can award class-wide injunctive relief that does not enjoin/restrain that Act (for example, orders mandating comprehensive testing, requiring masks, etc.), and while Plaintiffs’ Petition encompasses the possibility of such injunctive relief, see 2d Am. Pet., Dkt. 97, Prayer for Relief ¶ l, Plaintiffs focus on class-wide declaratory and habeas relief.
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issues at the outset before determining how the case as a whole should proceed. For purposes of certifying a representative habeas action “this Court need only
look to the provisions of Rule 23 in determining whether a representative action is appropriate and need not find precise compliance with the rule.” Cameron, 2020 WL 2569868 at *19. Congress has codified the historical flexibility of habeas proceedings by granting federal courts the power to “dispose of [habeas corpus petitions] . . . as law and justice require.” 28 U.S.C. § 2243; Harris v. Nelson, 394 U.S. 286, 291 (1969) (“The very nature of the writ demands that it be administered with the initiative and flexibility.”). Accordingly, courts may establish “appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.” Harris, 394 U.S. at 299. When courts consider representative habeas actions, they analogize to, but do not strictly apply, Rule 23.2 Numerous courts have certified habeas class actions during the COVID-19 crisis, looking both to Rule 23 and to other equitable factors.3
2 See, e.g., Sielaff, 546 F.2d at 221 n.5; United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974); Napier v. Gertrude, 542 F.2d 825, 827 n.2 (10th Cir. 1976); Streicher v. Prescott, 103 F.R.D. 559, 561 (D.D.C. 1984).
3 See, e.g., Wilson v. Williams, No. 20-3447, 2020 WL 3056217, at *5 (6th Cir. June 9, 2020) (finding habeas jurisdiction in class action seeking release of medically vulnerable prisoners); Martinez-Brooks v. Easter, 2020 WL 2405350, at *29–30 (D. Conn. May 12, 2020) (framing question as “whether a multi-party proceeding analogous to a class action is appropriate” because “multi-party treatment avoids the considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical
6

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Rule 23(d)—“which grants a court significant leeway in managing a class suit”—allows for the creation of subclasses as a case management device. 3 Newberg on Class Actions § 7:29 (5th ed.). Unless there is a conflict of interest between the class and subclass, “there is no necessity that each subclass … independently comply with all of the requirements of Rule 23 (a) [and] (b).” Id.; Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 F.R.D. 234, 250 (E.D. Cal. 2019) (“[T]he Court views the proposed subclasses as ‘case management’ subclasses under Rule 23(d) that are treated informally and need not independently satisfy the certification requirements of Rules 23(a) and 23(b)”). Here, the subclass need not independently satisfy Rule 23, as there is no conflict between the class and subclass.
The class easily satisfies the Rule 23 requirements that are needed for certification with respect to declaratory relief and instructive for certification in habeas. In the event that the Court might find those requirements applicable to the subclass, Plaintiffs also explain why the subclass likewise easily satisfies those requirements. II. Proposed Class and Subclass Definitions
The proposed class is defined as all noncitizens who are detained in Immigration and Customs Enforcement custody at Calhoun. Within the class, Plaintiffs seek to certify a subclass defined as:
issue” and ensures representation of inmates with no access to counsel); Roman v. Wolf, Ed CV 20-00768 TJH (PVCx), slip op. at 7 (C.D. Cal. Apr. 23, 2020).
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All noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.4
Quaid Alhalmi, Waad Barash, Sergio Brito, Tomas Cardona Ramirez, Guo
Yan Lin Castro, Jose Mauricio Garcia Toledo, Jose Gomez Santiz, Lenche Krcoska,
Yohandry Ley Santana, Sergio Perez Pavon, Damary Rodriguez Salabarria,
Emanuel Rosales Borboa, Rudy Sosa Carillo, Amer Toma, Johanna Whernman,
William Whernman, and Min Can Zhang seek to represent the class.5 Plaintiffs
4 These risk factors are: age of 50 or above, pregnancy or recent pregnancy (within last 6 weeks), and serious underlying medical condition including: chronic kidney disease (including receiving dialysis); chronic liver disease (including cirrhosis and chronic hepatitis); endocrine disorders (including diabetes mellitus); compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS); metabolic disorders (including inherited metabolic disorders and mitochondrial disorders); heart disease (including congenital heart disease, congestive heart failure and coronary artery disease); lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen; neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury); body mass index (BMI) of 40 or greater; hypertension; smoking or history of smoking; and, any other condition identified by the CDC as putting a person at a higher risk.
5 Plaintiffs Janet Malam (who is separately represented), Ruby Escobar (whom Defendants voluntarily released); Barajas Santoyo (who was released on bond, Second Amended Complaint (“2d Am. Compl.”), Dkt. 97, PageID.3259 n.19),
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Alhalmi, Barash, Cardona Ramirez, Krcoska, Perez Pavon, Rodriguez Salabarria, Rosales Borboa, Ley Santana, Toma, and Johanna and William Whernman seek to represent the subclass. III. Plaintiffs Satisfy the Rule 23(a) Requirements.
The class and subclass satisfy the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a).
A. Plaintiffs Satisfy Rule 23(a)(1). Plaintiffs satisfy Rule 23(a)(1) because joinder of all class members is “impracticable” based on the large number of class members and the barriers they face in filing individually. There were 144 noncitizens detained by ICE at Calhoun as of May 5, 2020, 51 of whom were identified by Defendants as having chronic medical conditions that make each of them likely to fall within the subclass.6 While any “substantial number” of class members will satisfy numerosity, “[c]ourts within the Sixth Circuit have recently stated that ‘the numerosity requirement is fulfilled when the number of class members exceeds forty.’” In re Wal-Mart ATM Fee Notice Litig., 2015 WL 6690412, at *7 (W.D. Tenn. Nov. 3, 2015) (quoting Phillips v.
and Leonard Baroi (who was moved to different detention facility, Decl. of Christopher Labadni ¶ 19, Dkt. 101–2) do not seek to represent the class. 6 See 2d Am. Compl., Dkt. 97, at ¶ 253 (list of 51 detainees is “underinclusive, as it excludes individuals with risk factors identified in the subclass definition”).
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Philip Morris Cos., Inc., 298 F.R.D. 355, 362 (N.D. Ohio 2014)). In cases where the class satisfies numerosity, “there is a relaxed numerosity approach for subclasses.” 7 NorCal Tea Party Patriots v. Internal Revenue Serv., 2016 WL 223680, at *6 (S.D. Ohio Jan. 19, 2016).
In addition, the logistical challenges posed by the pandemic, the fact that many individuals detained at Calhoun lack counsel and have limited English proficiency, and the need for this Court to resolve many similar claims expeditiously all support certification. See Barry v. Corrigan, 79 F. Supp. 3d 712, 731 (E.D. Mich. 2015) (noting judicial economy and practicality with which individual class members can bring suit individually as factors in 23(a)(1) inquiry), aff’d sub nom. Barry v. Lyon, 834 F.3d 706 (6th Cir. 2016); Fraihat v. ICE, __ F. Supp. 3d __, 2020 WL 1932570, at *17-20 (C.D. Cal. Apr. 20, 2020) (“Given the many obstacles to accessing counsel during the COVID-19 pandemic, the Court is concerned that many putative class members would not be able to proceed on their own . . .”).
B. Plaintiffs Satisfy Rule 23(a)(2). Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). A class satisfies the commonality requirement if the class members’ claims “depend on a common contention” and that common
7 See also Carter v. Arkema, Inc., 2018 WL 1613787, at *7 (W.D. Ky. Apr. 3, 2018); Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 625 (N.D. Ill. 2007).
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contention is “of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Stated another way, a proposed class satisfies the commonality requirement if class treatment will “generate common answers that are likely to drive resolution of the lawsuit.” In re Whirlpool, 722 F.3d at 852. Rule 23(a)(2) requires only that a single issue of law or fact be common to all members of the class. Wal-Mart, 564 U.S. at 359.
Courts routinely certify classes alleging systemic constitutional violations in jails, prisons, and detention centers, and indeed, numerous courts have certified such classes during the pandemic. 8 Here, Plaintiffs satisfy Rule 23(a)(2) because questions of both law and fact pertain to all class and subclass members, and are capable of class-wide resolution such that certification will advance the litigation.
The questions of law common to the class include whether: (1) detention at Calhoun violates their due process rights, and (2) Defendants must modify the conditions of confinement—or, failing that, release a critical mass of detainees— such that social distancing will be possible and all those held in the facility will not face a constitutionally violative substantial risk of serious harm. See 2d Am. Compl. ¶ 255. Questions of law common to the subclass include whether their detention at Calhoun violates their due process rights, requiring their immediate release. Id.
8 See infra at 17 n.10.
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Common questions of fact for both the class and subclass include whether and how social distancing can be accomplished in Calhoun, what measures are being taken to protect detainees from COVID-19 and whether those measures are sufficient. Id. Resolving these questions will yield exactly the kind of “common answer[s]” to Plaintiffs’ Fifth Amendment claims that the Supreme Court requires. See Wal-Mart, 564 U.S. at 351. Each of these questions can be determined “in one stroke” for all class and subclass members at the same time. Id. at 350. Indeed, this Court, in deciding the TRO motions to date, has already made numerous common legal and factual determinations. See supra pp. 2–4.
Factual differences regarding the precise nature of a person’s medical conditions and/or age are not relevant to the class definition, and do not defeat a showing of commonality for the subclass (if required). See In re Whirlpool Corp., 722 F.3d at 858. Such discrepancies are not central or essential to the claims or remedy, and do not defeat commonality because Plaintiffs’ central constitutional question—whether the inevitable risks posed by COVID-19 at Calhoun violate their due process rights—overcomes any differences. See, e.g., Savino v. Souza, __ F. Supp. 3d __, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020) (“[T]he Court determines that the admittedly significant variation among the Detainees does not defeat commonality . . . .”); Zepeda Rivas v. Jennings, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020) (“The government’s arguments regarding commonality .
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. . do not defeat class certification” because “[t]he primary question is whether the people detained … are being exposed to an unreasonable risk of infection in violation of the Due Process Clause”); Alcantara v. Archambeault, 2020 WL 2315777, at *5 (S.D. Cal. May 1, 2020) (finding commonality since subclass members’ varying risk profiles “do[] not detract from the undisputed common feature of the subclass, which is that each member is at high risk.”); Hill v. Snyder, 308 F. Supp. 3d 893, 914 (E.D. Mich. 2018) (finding commonality among class challenging state’s statutory scheme barring them from parole eligibility “[r]egardless of individual factors regarding a prisoner’s likelihood of parole”); Fraihat, 2020 WL 1932570, at *16–20.
C. Plaintiffs Satisfy Rule 23(a)(3). Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The claims of class representatives need not be identical to the claims of other class members. See Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007); Bridging Cmtys. Inc. v. Top Flight Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016). “A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” Beattie, 511 F.3d at 561. The typicality and commonality inquiries tend to merge. Whirlpool, 722 F.3d at 853.
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Here, the claims of the Named Plaintiffs—each of whom is described in detail in the Second Amended Complaint, Dkt. 97, at ¶¶ 18–37, 108–180—are typical of the class and subclass. Each named putative class and subclass representative is being harmed or threatened with harm by the same course of conduct as the rest of the class and subclass, namely ICE’s decision to continue to detain them in a setting that makes social distancing impossible. And each representative seeks similar relief as the rest of the class and/or subclass based on the same legal theories. Plaintiffs therefore satisfy Rule 23(a)(3).
D. Plaintiffs Satisfy Rule 23(a)(4). Finally, Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). There are two criteria for adequate representation: class representatives must (1) have common interests with unnamed members of the class, and (2) vigorously prosecute the interests of the case through qualified counsel. Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976); Am. Med. Sys., Inc., 75 F.3d at 1083. Plaintiffs satisfy the requirements of Rule 23(a)(4) because their interests are the same as to those of the unnamed members of the class. Like the unnamed class members, Plaintiffs are in danger of infection, injury and death from COVID-19 as result of being detained at Calhoun. They have a life-or-death incentive to litigate their claims vigorously. Plaintiffs have no known conflicts with other class
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members. Plaintiffs’ counsel—attorneys from the national American Civil Liberties Union; the American Civil Liberties Union of Michigan; and Paul, Weiss, Rifkind, Wharton & Garrison LLP—are experienced in conducting federal class action litigation, are familiar with the relevant laws and procedures, and have adequate resources to vigorously litigate this case. Counsel’s qualifications are set forth more fully in the attached Declaration of Miriam Aukerman, Ex. A. IV. Plaintiffs Satisfy the Rule 23(b) Requirements.
Certification here is warranted under both Rule 23(b)(1), because separate actions by class members would risk creating inconsistent outcomes and incompatible standards of conduct for Defendants, and under Rule 23(b)(2), because Defendants are acting in the same matter with respect to the class and subclass, such that class-wide relief is appropriate.
A. Plaintiffs Satisfy Rule 23(b)(1). A class may be certified under Rule 23(b)(1)(A) if “prosecuting separate actions by . . . individual class members would create a risk of . . . varying adjudications . . . that would establish incompatible standards of conduct.” As the Advisory Committee Notes explain, the considerations under Rule 23(b)(1)(A) “are comparable to certain of the elements which define the persons whose joinder in an
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action is desirable as stated in Rule 19(a).”9 Fed. R. Civ. P. 23(b)(1) Advisory Committee’s Note to 1966 amendment. “‘The felt necessity for a class action is greatest when the courts are called upon to order or sanction the alteration of the status quo in circumstances such that a large number of persons are in a position to call on a single person to alter the status quo, or to complain if it is altered, and the possibility exists that [the] actor might be called upon to act in inconsistent ways.’” Fed. R. Civ. P. 23(b)(1) Advisory Committee’s Note to 1966 amendment (quoting Louisell & Hazard, Pleading and Procedure: State and Federal 719 (1962)). The phrase “incompatible standards of conduct” refers to the situation where “different results in separate actions would impair the opposing party’s ability to pursue a uniform course of conduct.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1193 (9th Cir. 2001) (citing 7A Wright & Miller § 1773 at 431 (2d ed. 1986)); see also First Federal of Mich. v. Barrow, 878 F.2d 912, 919 (6th Cir. 1989) (stating that Rule 23(b)(1)(A) certification is appropriate where inconsistent adjudications could create conflicts in satisfying individual claims). “‘Rule 23(b)(1)(A) certification is most common” in cases in which the class seeks declaratory or injunctive relief against the government ‘to provide unitary treatment to all members
9 See also Apr. 3, 2020 Telephonic Mot. Hr’g, Dkt. 110, PageID.3749–50 (finding that Plaintiffs Escobar and Toma could intervene as of right in part because their “ability to protect [their interest in declaratory relief] in the absence of intervention may be impaired by disposition of the action”).
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of a defined group.’” Adair v. England, 209 F.R.D. 5, 12 (D.D.C. 2002) (citing 5
Moore’s Fed. Practice § 23.41[4] (3d ed. 2000)). Courts regularly certify classes
under Rule 23(b)(1)(A) where the alternative is multiple individual suits seeking the
same or similar remedial relief against the same set of defendants, possibly resulting
in inconsistent judgments directing contrary actions.10
Plaintiffs satisfy Rule 23(b)(1). There are now 21 plaintiffs in this case alone,
eleven of whom also fall in the proposed subclass. Three other lawsuits have already
been brought by immigration detainees seeking release from Calhoun. See Awshana
v. Adducci, et al., Case No. 20-10699 (habeas denied); Murai v. Adducci, et al., Case
10 See, e.g., Dodson v. CoreCivic, 2018 WL 4776081, at *5 (M.D. Tenn. Oct. 3, 2018) (certifying (b)(1)(A) class of insulin-dependent inmates because individual suits “could easily lead to inconsistent judgments and incompatible standards of conduct,” and “[c]ourts could arrive at different conclusions as to whether the same conduct is unconstitutional and how to remedy that conduct if it is”); Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003), opinion withdrawn on denial of reh’g sub. nom. Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005), as amended on reh’g, (Oct. 20, 2005) (certifying (b)(1)(A) class due to risk of inconsistent standards from conflicting judicial interpretations of same statute in action seeking to enjoin government from removing Somali nationals); Does I v. Gap, Inc., 2002 WL 1000073, at *5 (D. N. Mar. I. May 10, 2002) (certifying (b)(1)(A) class in action by factory workers because “absent class action, the defendants would be faced with potentially numerous lawsuits which could easily lead to conflicting injunctions that impose different standards of conduct, monitoring programs, and remedial rules on the various defendants”); Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991) (certifying (b)(1)(A) class for remediation claims because it is “unlikely that two different courts would tailor a remedial order in the same fashion, and it is therefore entirely conceivable that different remedial orders would contain incompatible provisions”).
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No. 20-10816 (habeas denied); Zaya v. Adducci, Case No. 20-10921 (preliminary injunction granted). There has also been an explosion of litigation involving immigration detainees at the other Michigan ICE facilities, demonstrating the likelihood, absent class certification, that there will be many more individual suits at Calhoun which could trigger inefficiencies and inconsistent judgments directing contradictory actions by Defendants.11
If each of the approximately 144 putative class members detained at Calhoun were to bring a separate suit making the allegations made here, the adjudication of these actions would risk creating inconsistent decisions that would establish varying standards to which Defendants would have to adhere. See Adair, 209 F.R.D. at 12 (finding risk of inconsistent adjudications where there were three other pending cases on same issue). Indeed, Defendants themselves have argued that there “are already inconsistent decisions among Calhoun detainees.” Defs.’ Resp. to Mot. to Amend, Dkt. 94, PageID.3227. That is precisely the problem Rule 23(b)(1)(A) is designed to address. Not only might different courts reach different conclusions
11 Petitioners are aware of at least twelve cases with wildly divergent outcomes concerning immigration detainees at other Michigan ICE facilities. See, e.g., Perez-Perez v. Adducci, et al., Case No. 20-10833 (TRO granted—Monroe); Fofana v. Albence, et al., Case No. 20-10869 (TRO denied in part, granted in part—Monroe); Thaer v. Adducci, Case No. 20-10857 (TRO denied—St. Clair); Albino-Martinez v. Adducci, et al., Case No. 20-10893 (one detainee voluntarily released after infected with COVID; TRO denied for others—St. Clair, Monroe).
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about the applicable legal standards or make different factual findings, but different courts could subject the Defendants to conflicting obligations. For example, different courts might find release is required based on the failure to meet different conditions of quarantining, sanitation, testing, and isolation. Different courts might conclude that detention is impermissible absent de-densification of Calhoun to allow for social distancing, but disagree on the number of individuals who can be safely detained, or on whether, if social distancing is possible, those most vulnerable must still be released. Thus, if this Court were to find, for example, that only 50 people could safely be detained at Calhoun consistent with social distancing and order releases prioritizing those most vulnerable, that order would be inconsistent with an order in another court holding that a highly vulnerable detainee can remain detained because there is no constitutional violation. Similarly, were this Court to find singlecelling required to protect against the virus, but another court were to find that this violates constitutional limitations on solitary confinement, Defendants could not comply with both orders. A similar issue might arise if a facility only had two available medical cells, yet more than two courts ordered their use. Because certification under Rule 23(b)(1) is designed to address “situations in which different courts might put a defendant under conflicting decrees,” 3 Newberg on Class Actions § 4:11 (5th ed.), it is warranted here for both the class and subclass.
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B. Plaintiffs Satisfy Rule 23(b)(2). Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” As stated in the leading treatise on class actions: Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. 2 Newberg on Class Actions § 25.20 (4th ed. 2002); Dearduff v. Washington, 330 F.R.D. 452, 472 (E.D. Mich. 2019). Courts routinely certify (b)(2) class actions in cases challenging the policies, procedures and safety of prisons, jails, and detention centers. See Brown v. Plata, 563 U.S. 493, 506 (2011); Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 374 (1992). Here, Defendants have acted or refused to act on grounds that apply generally to the class, namely by detaining and failing to protect class members during the COVID-19 pandemic. Plaintiffs bring common claims susceptible to common proof and seek a common remedy. See Gooch v. Life Inv’rs Co. of Am., 672 F.3d 402, 428 (6th Cir. 2012). Class and subclass members all assert that Defendants are placing them at grave risk of serious illness or death and violating their due process rights. Adjudication of those common claims requires looking to common proof, e.g., information about social distancing, hygiene, and testing at Calhoun.
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Plaintiffs also seek common remedies. First, the class and subclass ask the Court to declare that their continued detention is unlawful—a common remedy that requires resolution of common legal and factual questions. The Sixth Circuit has approved (b)(2) certification for class members seeking common declaratory relief. Gooch, 672 F.3d at 428 (certification where class members sought declaratory judgment that uniformly interpreted a contract). All class members seek the same declaration as to what steps must be taken so that immigration detention at Calhoun during the COVID-19 crisis is non-punitive, including the maximum number who can be safely detained. All subclass members seek the same declaration that civil detention under any conditions during the pandemic violates their due process rights.
Similarly, Plaintiffs seek unitary habeas relief. The subclass seeks a classwide writ of habeas corpus on the ground that their detention during the pandemic is not reasonably related and excessive in relation to the government’s interest in ensuring their availability for removal. Similarly, the class seeks class-wide habeas relief, in the form of a conditional writ ordering their release, unless: (1) Defendants have demonstrated that the class member presents a risk of flight or danger that outweighs the risk of severe illness or death such that continued detention of the individual is reasonable under those circumstances; and (2) Defendants have taken the steps that the Court has declared must be taken in order for individuals to be detained at Calhoun without violating their constitutional rights and have reduced
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the population to the level that the Court has found can be safely detained. Finally, to the extent that Plaintiffs may seek other injunctive relief to protect their health and safety, that relief would be common to the class.
Courts throughout the country have certified classes of immigration detainees seeking declaratory, injunctive, and habeas relief throughout the COVID-19 pandemic using 23(b)(2) and/or its habeas counterpart.12 See, e.g., Zepeda Rivas, 2020 WL 2059848, at *1 (“all class members have suffered the same injury—the substantial risk of contracting COVID-19 due to the lack of social distancing—and all class members would benefit from the same remedy—an order requiring social distancing”); Fraihat, 2020 WL 1932570, at *17-20 (provisionally certifying class of ICE detainees seeking injunctive and declaratory relief under 23(b)(2)); Savino, 2020 WL 1703844, at *8 (provisionally certifying class of ICE detainees seeking habeas, injunctive, and declaratory relief under Rule 23(b)(2)); Gomes v. Acting Secretary, No. 20-CV-453-LM, 2020 WL 2113642, at *3–4 (D.N.H. May 4, 2020) (provisionally certifying class of all ICE detainees for the purpose of facilitating expedited bail hearings in light of the COVID-19 pandemic); Alcantara, 2020 WL
12 Numerous courts have also certified classes of people detained in prisons and jails during the pandemic, as well as subclasses of the medically vulnerable, under Rule 23(b)(2). See, e.g., Busby v. Bonner, No. 20-cv-2359-SHL, slip op. at 17–18 (W.D. Tenn. June 10, 2020); Cameron v. Bouchard, No. CV 20-10949, 2020 WL 2569868, at *19 (E.D. Mich. May 21, 2020); Yanes v. Martin, No. 1:20cv-00216-MSM-PAS, Dkt. 21 (D.R.I. May 20, 2020).
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2315777, at *6 (medically vulnerable “subclass is particularly suited for certification under Rule 23(b)(2) because Defendants are acting on grounds generally applicable to the subclass, and the injunctive relief sought is appropriate for the subclass as a whole”); Quadrelli v. Moniz, 2020 WL 3051778, at *7 (D. Mass. June 8, 2020) (certifying class of ICE detainees under Rule 23(b)(2) and noting that declaratory and injunctive relief other than a class-wide release could be granted). Just as in those cases, the class and subclass here present commons claims that can be resolved on a class-wide basis and therefore satisfy Rule 23(b)(2). V. In the Alternative, the Court Can Certify Issue Classes under Fed. R.
Civ. P. 23(c)(4). For the reasons outlined above, certification is warranted under either Rule 23(b)(1) or (b)(2). However, Defendants will likely argue that the merits and certification questions are intertwined, and use merits arguments to oppose certification. To address this, the Court could, if it prefers, first certify certain merits issues for resolution under Rule 23(c)(4), and then decide, after ruling on those issues, whether to grant full certification.13 When certification is sought under Rule
13 Resolution of those questions may also shape the relief available. For example, the Court will need to decide what standard applies to claims by immigrant detainees challenging confinement during the pandemic. If the Court finds that detention of those at highest risk of severe illness or death is punitive because it is not reasonably related to, and excessive in relation to, the government’s interest in ensuring their availability for removal, it could grant unitary habeas relief to the subclass. If, on the other hand, the Court adopts a standard that requires a
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23(c)(4), the court need only assess whether the Rule 23(b) requirements are met with respect to the issues being certified, not with respect to the case as a whole. See Martin, 896 F.3d at 413.
Rule 23(c)(4) provides: “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” The issues appropriate for certification under Rule 23(c)(4) here include:
a. Common factual questions related to current practices to prevent and manage coronavirus infections at Calhoun;
b. Common factual questions related to what practices are necessary to prevent and manage coronavirus infections at Calhoun;
c. Whether continued detention in civil immigration custody at Calhoun of members of the class violates the Due Process Clause, and what standard should be applied to answer that question; and
d. Whether continued detention in civil immigration custody at the Calhoun of members of the subclass violates the Due Process Clause, and what standard should be applied to answer that question.
In Martin, 896 F.3d at 413, the Sixth Circuit approved using issue class certification to bifurcate proceedings where class treatment is the superior method of resolving common questions, even if there are some issues that require individualized adjudication. Martin involved a toxic tort groundwater
more individualized approach, then the Court may prefer to bifurcate proceedings. The Court could resolve the standards question under Rule 23(c)(4), and then establish procedures to apply that standard in individual cases.
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contamination class action where the district court found that, although the class met Rule 23(a) requirements, it did not satisfy Rule 23(b)(3)’s predominance requirement, given the importance of differences among class members around injury-in-fact and causation. Id. at 409–10. However, the district court certified seven common issues under Rule 23(c)(4), with the intention of “‘establish[ing] procedures by which the remaining individualized issues concerning fact-of-injury, proximate causation, and extent of damages can be resolved’” after resolution of the common certified issues. Id. at 408, 410 (quoting district court decision). In affirming, the Sixth Circuit adopted the “broad view” of the relationship between Rule 23(b) and Rule 23(c)(4), holding that an issue class can be certified if the requirements of Rule 23(b)(3) are met for particular issues, even if the claims of the class as whole do not meet the requirements of Rule 23(b)(3). In approving the issues that had been certified in Martin, the Court noted that they were “capable of resolution with generalized, class-wide proof,” that they “need only be answered once because the answers apply in the same way to each [class member],” and that “[e]xpert evidence will be central to resolving these [] issues”—all factors that are equally true here. Id. at 414.
Although issues classes are used most commonly in (b)(3) class actions, courts have also used Rule 23(c)(4) where certification is sought under Rule 23(b)(1)
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and (b)(2).14 For example, in McReynolds v. Merill Lynch, Pierce, Fenner & Smith,
Inc., 672 F.3d 482, 492 (7th Cir. 2012), abrogated on other grounds by Phillips v.
Sheriff of Cook Cty., 848 F.3d 541, 559 (7th Cir. 2016), the Seventh Circuit reversed
a denial of issue class certification under 23(b)(2) and 23(c)(4) in a suit seeking
injunctive relief against allegedly discriminatory employment policies:
[S]hould the claim of disparate impact prevail in the class-wide proceeding, hundreds of separate trials may be necessary to determine which class members were actually adversely affected by one or both of the [challenged] practices and if so what loss each class member sustained . . . But at least it wouldn’t be necessary in each of those trials to determine whether the challenged practices were unlawful . . . The practices challenged in this case present a pair of issues that can most efficiently be determined on a class-wide basis, consistent with [Rule 23(c)(4)] . . . “If there are genuinely common issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-on proceedings.”
Id. (quoting Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003)).
In sum, the resolution of common questions is clearly warranted on a class-
wide basis. At the certification stage, the question is could the Court award class-
14 See, e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 (2d Cir. 2001), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n.32 (6th Cir. 1976); Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 544 (N.D. Cal. 2012); United States v. City of New York, 2011 WL 3174084, at *37 (E.D.N.Y. 2011); Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358, 380 (E.D. Ark. 2007).
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wide relief, not will the Court award class-wide relief.15 The Court should therefore certify under both Rule 23(b)(1) and (b)(2). To the extent the Court wishes to proceed in a more cautious fashion, it can, as an alternative to class certification for all proceedings, first certify issue classes, and then determine further proceedings after those common issues are resolved. This path is quite similar to simply certifying under Rule 23(b)(1) and (b)(2), and then first resolving Plaintiffs claims for class-wide declaratory relief (the availability of which is alone sufficient for certification, Gooch, 672 F.3d at 428). Either approach recognizes that there are common questions, the answer to which will determine what class-wide relief is available. In other words, “common answers that are likely to drive resolution of the lawsuit.” In re Whirlpool, 722 F.3d at 852. That means class certification is proper. VI. Section 1252(f)(1) Presents No Obstacle to Certification.
8 U.S.C. § 1252(f)(1) provides: (f) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [the Immigration and Nationality Act (“INA”)], other than
15 See Savino, 2020 WL 1703844, at *8 (“The Court concludes that a uniform remedy would be possible in this case, whether in the form of declaratory relief or (depending on the proper reading of 8 U.S.C. § 1252(f), as alluded to above) an injunction ordering the government to reduce crowding of Detainees.”); Dearduff v. Washington, 330 F.R.D. 452, 474 (E.D. Mich. 2019).
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with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. By its plain terms, section 1252(f)(1)—which is titled “Limit on injunctive relief”—does not bar the use of class actions to challenge immigration detention, but limits only the type of relief that is available in such litigation. In Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018) (Hamama I), and Hamama v. Adducci, 946 F.3d 875 (6th Cir. 2020) (Hamama II), the Sixth Circuit interpreted § 1252(f)(1) to bar class-wide injunctive relief that would “enjoin or restrain” 8 U.S.C. §§ 1225, 1226 and 1231—INA provisions governing immigration detention. See Hamama I, 912 F.3d at 880; Hamama II, 946 F.3d at 876. Section 1252(f)(1) does not bar the types of class-wide relief Plaintiffs seek at this juncture: habeas and declaratory relief. Thus, there are clearly remedies available that are entirely permissible under section 1252(f)(1), and “[a]t this class certification stage, it is enough to establish that the Court could provide a classwide remedy.” Savino, 2020 WL 1703844, at *5 (original emphasis); Quadrelli, 2020 WL 3051778, at *8 (same). With respect to habeas relief, the Sixth Circuit emphasized in Hamama I that class-wide habeas relief remains available: “there is nothing barring a class from seeking a traditional writ of habeas corpus (which is distinct from injunctive relief[)].” Hamama I, 912 F.3d at 879 (citing Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (Thomas, J., concurring in part and concurring in judgment)). With respect to declaratory relief, the Supreme Court recently reaffirmed its availability,
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finding section 1252(f)(1) to be no obstacle. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (Alito, J.) (plurality op.) (whether the district court had jurisdiction to enter a class-wide injunction “is irrelevant because the District Court had jurisdiction to entertain the plaintiffs’ request for declaratory relief”). Lower courts have also consistently found declaratory relief available notwithstanding section 1252(f)(1).16 Indeed, several courts have provisionally certified or certified classes of immigrant detainees during the COVID-19 crisis based on the availability of declaratory relief, notwithstanding Section 1252(f)(1). See Savino, 2020 WL 1703844, at *5 (holding that Section 1252(f)(1) “does not bar declaratory relief and therefore poses no obstacle to class certification”); Quadrelli, 2020 WL 3051778, at *7 (“Section 1252(f) does not bar declaratory relief and is consequently not a bar to class certification.”); Gomes, 2020 WL 2113642, at *3 (provisionally certifying class based, in part, on request for a declaratory judgment); Fraihat, 2020 WL 1932570, at *20 (certifying class in part based on availability of declaratory relief).
Finally, section 1252(f)(1) does not bar certification of Rule 23(c)(4) issue classes. As construed by Hamama I, section 1252(f)(1) prohibits enjoining or
16 See also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011) (“[V]iewing [§ 1252(f)(1)] in context and then taking into consideration the heading of the provision [‘limits on injunctive relief’], it is apparent that the jurisdictional limitations in § 1252(f)(1) do not encompass declaratory relief.”); Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) (“It is simply not the case that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class.”).
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restraining certain INA provisions on a class-wide basis. A judicial ruling deciding an issue of law or fact on a class-wide basis does not enjoin or restrain anything. For the same reasons that declaratory relief is not barred by section 1252(f)(1), issue class decisions are permissible as well. Cf. Alli, 650 F.3d at 1013-15 (concluding that a declaratory judgment would neither “enjoin” nor “restrain” the INA).
More fundamentally, a class-wide ruling on an issue is preliminary to any relief that might be granted. Here the Court might rule on a class-wide basis what standard should apply to determine whether civil detention at Calhoun is punitive, or might make factual findings about COVID-19 prevention measures there. Those issue determinations can become the predicate for further relief, which could be habeas, declaratory, or injunctive. If the subsequent relief is habeas or declaratory— which is the principal focus of Plaintiffs’ class-wide claims—section 1252(f) is simply inapplicable. To the extent an issue class ruling would later be considered in adjudicating whether a particular individual is entitled to injunctive relief, any such relief would be with respect “to an individual alien.” Cf. Alli, 650 F.3d at 1015 (concluding that “individual injunctions after issuance of a classwide declaration” are “expressly permitted under § 1252(f)(1)”). VII. The Class and Subclass Are Appropriately Defined.
Classes seeking only equitable relief, and not damages, do not need to demonstrate that the proposed class is “sufficiently definite” or that “the precise
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identity of each class member” can be ascertained in order for certification to be granted. Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir 2016). Even if such a requirement existed, the class and subclass are definite and objectively measured.
The class is defined as all noncitizens who are detained in ICE custody at Calhoun—a clearly identifiable group.17 See 2d Am. Compl., Dkt. 97, PageID.3337. The subclass is defined as all noncitizens who are detained in ICE custody in Calhoun, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19. Id. The risk factors incorporated into the subclass definition track those identified by the Centers for Disease Control and Prevention (CDC), but also include three additional risk factors (age over 50,
17 Defendants suggested at the June 5, 2020 status conference that class certification would be improper because the class might include people who brought individual habeas petitions that have been denied. If the Court is concerned about this issue, it can simply adopt the approach used in Hamama v. Adducci, where the class definitions explicitly carved out individuals who had challenged their detention through individual petitions. 285 F. Supp. 3d 997, 1027 (E.D. Mich.), rev’d on other grounds, 912 F.3d 869 (6th Cir. 2018); see also Ingles v. City of New York, 2003 WL 402565, at *4 (S.D.N.Y. 2003) (defining class of inmates challenging excessive force to exclude those “subject to court order based on prior use of force litigation”). For example, the class definition could be amended to read “all noncitizens who are detained in Immigration and Customs Enforcement custody at the Calhoun County Correctional Center, and who have not had an individual habeas petition denied that seeks relief on claims similar to Counts I and II.”
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hypertension, and history of smoking) as verified by experts.18 See, e.g., Venters Class Certification Decl. ¶ 15, Ex. C; Mayer Decl. ¶ 25, Ex. B; Golob Decl. ¶ 3, Dkt. 44-2; Greifinger Decl. ¶ 5, Dkt. 44-3; McKenzie Decl. ¶ 18, Dkt. 99; Lieb Decl. ¶ 9, Dkt. 84; cf. Fraihat, 2020 WL 1932570, at *16 n.20 (certifying subclass of risk factors deviating from the CDC guidelines); Rodriguez Alcantara, 2020 WL 2315777, at *6–7 (same on age); Gomes, No. 1:20-cv-00453-LM, Dkt. 52, at 4-5 (same on hypertension). As this Court previously found, “[w]hile CDC guidance is an appropriate point to begin risk analysis, the Court’s inquiry cannot end there. Indeed, the CDC itself acknowledges that ‘COVID-19 is a new disease and there is limited information regarding risk factors for severe disease.’” Apr. 9 Op. & Order, Dkt. 29, PageID.638. Thus, “while the Court treats the presence of a CDC risk factor as dispositive of a person’s increased risk, the inverse is not true where public health or other evidence on the record can show a Plaintiff is nonetheless at substantial risk.” May 23 Op. & Order, Dkt. 90, PageID.2709-10.
18 Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigationstrategy.pdf (last accessed June 2, 2020); Groups at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html (last accessed June 2, 2020); People Who Are at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed June 4, 2020).
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As Dr. Venters explains, the proposed subclass definition accurately reflects what is presently known about which individuals are at highest risk, although it may be somewhat underinclusive. Venters Class Certification Decl. ¶ 16, Ex. C. In addition to the CDC risk factors, the subclass definition includes hypertension and history of smoking, based on expert evidence that they severely increase risk.19 Id. ¶¶ 11, 19, 29–37; Mayer Decl. ¶ 24, Ex. B; McKenzie Decl. ¶¶ 18, 20. The subclass definition also includes individuals who are age 50 or older because the CDC’s age guidelines need to be modified to the detention setting.20 Venters Class Certification Decl. ¶ 40, Ex. C; see also Golob Decl. ¶ 3, Dkt. 44–2; Greifinger Decl. ¶ 5, Dkt. 44–3; McKenzie Decl. ¶ 19, Dkt. 99.
It is a straightforward task to determine if a particular individual falls within the subclass definition. One must simply determine if the individual has one of the listed conditions, or is over 50. Pursuant to the nationwide injunction entered in Fraihat, Defendants already have an obligation to track and identify medically
19 This Court has credited testimony from medical experts stating that despite some uncertainty surrounding causation, hypertension is nonetheless “a CDCrecognized risk factor” for severe illness and/or death from COVID-19. See May 23 Op. & Order, Dkt. 90, at PageID.2717.
20 Relying on expert evidence that people over fifty are at serious risk of severe illness and death from COVID-19, and on statements by both the Centers for Disease Control and Prevention and the World Health Organization that risk increases with age, the Court previously found that age was a risk factor for 55year-old Amer Toma. Apr. 9 Op. & Order, Dkt. 29, PageID.637–39; Apr. 22 Op. & Order, Dkt. 41, PageID.904-05; May 23 Op. & Order, Dkt. 90, PageID.2710.
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vulnerable individuals. 2020 WL 1932570, at *27, *29. Defendants themselves have used or claim to have used nearly the same uniform criteria to identify detained individuals at high risk.21 See, e.g., ICE Guidance, Dkt. 44-4, Pg.ID# 1139–40, Bostock Decl., Dkt. 52-8, Pg.ID# 1602. For the few risk factors not covered under the Fraihat or ICE protocols—namely ages between 50-54, history of smoking, and hypertension—identification can be easily administrated through a review of medical records and questionnaires to class members. See Snead v. CoreCivic of Tennessee, LLC, No. 3:17-CV-0949, 2018 WL 3157283, at *16 (M.D. Tenn. June 27, 2018) (noting that class membership “should be objectively ascertainable based on defendants’ records . . . [and] on responses to questionnaires to former inmates”).
Courts have certified classes nearly identical to the subclass proposed here at other detention facilities. See, e.g., Fraihat, 2020 WL 1932570, at *16 n.20, *29 (certifying subclass of all ICE detainees nationwide with risk factors for compliance with ICE’s COVID-19 guidance); Alcantara, 2020 WL 2315777, at *5 (provisionally certifying subclass of immigrants detained at Otay Mesa Detention
21 ICE’s list is underinclusive because it does not include all of those with risk factors as set out in the subclass definition. Venters Class Certification Decl. ¶ 38, Ex. C. However, the fact that ICE can create lists of people who have certain medical conditions shows that it can also create lists of people who have other medical conditions, particularly as they pertain to universally noted information such as age and blood pressure readings. Id. ¶ 21 (“Identifying individuals in the high-risk population is not only logistically manageable, but also something that ICE should already be actively engaged in.”).
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Center who are at high risk of serious illness or death from COVID-19). Outside the COVID-19 context, courts in the Sixth Circuit routinely certify classes that are defined based on criteria akin to those Plaintiffs propose here. See, e.g., Dodson, 2018 WL 4776081, at *5 (certifying class of incarcerated people with “Type I and insulin-dependent Type II diabetes . . . who require access to blood sugar checks and insulin administration in coordination with regular mealtimes”); Snead, 2018 WL 3157283, at *16 (certifying a class of former inmates who had a rash consistent with scabies and were denied or received delayed treatment); McBride v. Mich. Dep’t of Corr., 2017 WL 3097806, at *1, *8 (E.D. Mich. June 30, 2017) (certifying a class of deaf and hard of hearing prisoners); Ball v. Kasich, 2017 WL 2061398, at *1 (S.D. Ohio May 11, 2017) (certifying class of “individuals with intellectual and developmental disabilities who are institutionalized or at serious risk of institutionalization in large Intermediate Care Facilities (“ICFs”) with eight or more beds throughout Ohio”); Lippert, 2017 WL 1545672, at *10 (certifying a class of “all prisoners in the custody of the Illinois Department of Corrections with serious medical or dental needs”). Just as in those cases, certification is warranted here.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court certify the class and subclass as defined above.
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Dated: June 14, 2020
Respectfully submitted,
_/_s_/ _M_i_ri_am__J_. _A_u_k_er_m_a_n_______ Miriam J. Aukerman (P63165) Ayesha Elaine Lewis* American Civil Liberties Union
Fund of Michigan 1514 Wealthy Street SE, Suite 260 Grand Rapids, MI 49506 Telephone: (616) 301-0930 maukerman@aclumich.org
Daniel S. Korobkin (P72842) Monica C. Andrade (P81921) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6824 dkorobkin@aclumich.org
David C. Fathi* Eunice H. Cho American Civil Liberties Union
Foundation, National Prison Project 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org

Anand V. Balakrishnan Michael K.T. Tan Omar C. Jadwat* ACLU Foundation Immigrants’
Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org
My Khanh Ngo ACLU Foundation Immigrants’
Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
_/_s/_J_e_an_n_i_e_S_. _R_h_ee_____ Jeannie S. Rhee Mark F. Mendelsohn* Rachel M. Fiorill Peter E. Jaffe 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com rfiorill@paulweiss.com pjaffe@paulweiss.com
Jonathan M. Silberstein-Loeb Oleg M. Shik* Katherine W. Gadsden* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com oshik@paulweiss.com kgadsden@paulweiss.com
Attorneys for Plaintiffs
* Application for admission forthcoming
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CERTIFICATE OF SERVICE I, Jeannie S. Rhee, certify that on June 14, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. I also caused true and correct copies of the foregoing document as well as un-redacted copies of the declarations and exhibits filed therewith to be served by electronic mail on counsel for Defendants.
Respectfully submitted,
_/s_/_J_ea_n_n_ie__S_. R__he_e____________

Case 5:20-cv-10829-JEL-APP ECF No. 112-1 filed 06/14/20 PageID.3821 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM,

Petitioner-Plaintiff, - against -

No. 5:20-cv-10829-JEL-APP

REBECCA ADDUCCI, et al.,

Respondent-Defendants.

INDEX OF EXHIBITS Exhibit A: Declaration of Miriam Aukerman Exhibit B: Declaration of Dr. Stockton M. Mayer Exhibit C: Class Certification Declaration of Dr. Homer Venters

Case 5:20-cv-10829-JEL-APP ECF No. 112-2 filed 06/14/20 PageID.3822 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JANET MALAM, Petitioner-Plaintiff,
- against -
REBECCA ADDUCCI, et al., Respondent-Defendants.

No. 5:20-cv-10829-JEL-APP

DECLARATION OF MIRIAM J. AUKERMAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

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DECLARATION OF MIRIAM J. AUKERMAN
I, Miriam J. Aukerman, pursuant to 28 U.S.C. § 1746 declare as follows: 1. I am an attorney of record for Petitioners-Plaintiffs (“Plaintiffs”) and the proposed class. 2. I am admitted to practice in the courts of Michigan and in this district. I make this declaration based on my personal knowledge, based on a review of the records maintained by my office and the office of my co-counsel in the ordinary course of business, and based on the representations of my co-counsel on which I reasonably rely. 3. I am a Senior Staff Attorney at the American Civil Liberties Union of Michigan (“ACLU of Michigan”). The ACLU of Michigan has brought numerous civil rights cases in its over sixty-year history, including litigation concerning prison conditions and immigrants’ rights. I have 20 years of experience litigating federal civil rights cases, including ten years with the ACLU of Michigan. In the past several years I have been appointed class counsel in Hamama v. Adducci, No. 17-cv-11910 (E.D. Mich.); Does #1-6 v. Snyder, No. 2:16-cv-13137 (E.D. Mich.); and Barry v. Lyon, No. 13-cv-13185, aff'd sub nom. Barry v. Lyon, 834 F.3d 706 (6th Cir. 2016). 4. Daniel S. Korobkin is the Legal Director of the ACLU of Michigan. He has over twelve years of legal experience, including ten years in civil rights
2

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litigation with the ACLU of Michigan. He has recently served as class counsel in McBurrows v. Detroit Public Schools, No. 09-cv-14863 (E.D. Mich.); Hill v. Snyder, No. 10-cv-14568 (E.D. Mich.); Morningside Community Organization v. Sabree, No. 16-008807-CH (Wayne Co. Cir. Ct.); and D.R. v. Michigan Department of Education, No. 16-cv-13694 (E.D. Mich.).
5. Among the class action lawsuits litigated by the ACLU of Michigan in recent years have been Dowdy-El v. Caruso, No. 06-cv-11765 (E.D. Mich.) (halal food for Muslim prisoners); Duncan v. Michigan, No. 07-242-CZ (Ingham Co. Cir. Ct.) (indigent defense); Hill v. Snyder, No. 10-cv-14568 (E.D. Mich.) (juvenile life without parole); Barry v. Lyon, No. 13-cv-13185 (E.D. Mich.) (public assistance); Hamama v. Adducci, No. 17-cv-11910 (E.D. Mich.) (deportation to Iraq); Does #1-6 v. Snyder, 2:16-cv-13137 (E.D. Mich.) (registration of people with sex offenses); and Cameron v. Bouchard, No. 20-cv-10949 (E.D. Mich.) (imprisonment during COVID-19 pandemic).
6. My co-counsel in this case includes the National American Civil Liberties Union (“ACLU”) and the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul, Weiss”).
a. The ACLU has more than 25 years of experience in litigation on behalf of immigrants’ and prisoners’ rights, including a focus on immigration detention. Its attorneys have years of
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experience litigating complex immigrants’ and prisoners’ rights cases in federal court. The primary attorneys from the National ACLU involved in this case are:
i. Michael Tan, the Deputy Director of the ACLU Immigrants’ Rights Project, graduated from Yale Law School in 2008 and has more than eleven years of experience litigating immigrants’ rights cases in federal court, with a focus on class action litigation on behalf of detained immigrants.
ii. Anand Balakrishnan, a Senior Staff Attorney at the ACLU Immigrants’ Rights Project, graduated from Yale Law School in 2009. Before joining the ACLU, he practiced for five years with a primary focus on criminal defense and a secondary focus on civil rights and impact litigation. Since joining the ACLU, he has litigated numerous federal court challenges to immigration law, including class actions.
iii. My Khanh Ngo, a Staff Attorney at the ACLU Immigrants’ Rights Project, graduated from Yale Law School in 2017. At the ACLU, she litigates complex
4

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immigration-related cases in federal court, including class actions. iv. David C. Fathi, the Director of the ACLU Immigrants’ Rights Project, graduated from Boalt Hall School of Law at the University of California, Berkeley. He has almost 25 years of experience litigating immigrants’ rights in federal court, and has devoted his legal practice exclusively to class actions on behalf of persons confined in prisons, jails, and other detention facilities. v. Eunice Hyunhye Cho, a Senior Staff Attorney for the ACLU National Prison Project, graduated from Stanford Law School in 2009. Her practice has focused on the civil rights of immigrants and prisoners, including conditions of confinement in immigration detention and state prison systems, law enforcement abuse by ICE, and the labor and employment rights of non-citizens. At the ACLU, she has litigated federal court challenges to immigration law, including class actions. b. Paul, Weiss is a law firm with offices in New York, Washington, D.C., Delaware, London, Toronto, Beijing, Hong
5

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Kong, and Tokyo that represents clients ranging from many of the largest publicly and privately held corporations and financial institutions in the United States and throughout the world to pro bono clients in need of legal representation. Throughout its history, Paul, Weiss has provided pro bono legal assistance to those in need and to serve the public interest. Paul, Weiss has served as counsel in cases that fought to protect the rights of the underserved, including class actions.1 The Paul, Weiss attorneys involved in this case include:
i. Jeannie S. Rhee, a partner at Paul, Weiss, graduated from Yale Law School in 1997. Prior to joining Paul, Weiss, Jeannie was a federal prosecutor. She has extensive experience litigating complex civil cases, including class actions, in federal court. In the past year, she has been counsel of record in two major federal class actions, In Re Snap Inc. Securities Litigation, No. 2:17-cv-03679-
1 See, e.g., K. Davis v. City of New York, No. 10 Civ. 0699 (S.D.N.Y.) (unconstitutional stops, frisks, and arrests in public housing); Rivera v. City of New York, No. 12 Civ. 8398 (S.D.N.Y.) (correctional officers’ deliberate indifference to the safety of a pre-trial detainee confined at Rikers Island); Medina v. N.Y. State Dep’t of Corrs. & Cmty. Servs., No. 11 Civ. 176 (S.D.N.Y) (class action alleging failure to provide accommodations to legally blind and severally visually impaired prisoners); Brito v. N.Y.C. Hous. Auth., No. 09 Civ. 1621 (E.D.N.Y.) (disability rights class action on behalf of mobility-impaired public housing residents regarding NYCHA’s failure to maintain elevators in reasonable operating condition).
6

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SVW-AGR (C.D. Cal.) and In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 1:05-md-01720-MKB-JO (E.D.N.Y.). ii. Mark F. Mendelsohn, a partner at Paul, Weiss, graduated from the University of Virginia School of Law in 1993. Prior to joining Paul, Weiss, he was a federal prosecutor for approximately twelve years, including six years as Deputy Chief of the DOJ Criminal Division’s Fraud Section. iii. Peter Jaffe, a counsel at Paul, Weiss, graduated from the University of Michigan Law School in 1990. He is a former Department of Justice trial attorney and counsel to the United States Senate Judiciary Committee. iv. Jonathan Silberstein-Loeb, an associate at Paul, Weiss, holds an LL.M. from the New York University School of Law. He has appeared before this Court as counsel for Plaintiffs, and is currently co-counsel in a similar COVID-19-related detention class action in the District Court for the Western District of Tennessee, Busby v. Bonner, No. 2:20-cv-02359. He has recently been
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counsel in two major class actions, In Re Snap Inc. Securities Litigation, No. 2:17-cv-03679-SVW-AGR (C.D. Cal.) and In re The Bank of New York Mellon ADR FX Litigation, No. 1:16-cv-00212-JPO-JLC (S.D.N.Y.). 7. There are additional attorneys and support staff at the ACLU of Michigan, the National ACLU, and Paul, Weiss who are assisting in the litigation, including handling communications with plaintiffs and putative class members. 8. Class Counsel’s collective experience in litigating complex actions in federal court, including issues concerning constitutional questions, spans decades. Class Counsel will vigorously represent the interests of the class and subclass members and are aware of no conflict between themselves and the class and subclass members. 9. Class Counsel have committed, and will continue to commit, substantial resources to representing the representative Plaintiffs and the class and Subclass in this case. 10. Class Counsel has spoken with all of the Named Plaintiffs and/or their attorneys or families and has reviewed all available medical history or records pertaining to the Named Plaintiffs. Based on those conversation, I believe that all of the Named Plaintiffs possess a true commitment to the underlying cause of this
8

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legal action, that they have no conflicts with the class or subclass, and that they will competently represent the interests of the class and subclass. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 14th day of June, 2020.
/s/ Miriam J. Aukerman Miriam J. Aukerman
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Case 5:20-cv-10829-JEL-APP ECF No. 112-3 filed 06/14/20

PageID.3831 Page 1 of 10
Division of Infectious Disease 1801 W. Taylor St. Chicago, IL 60612 P: 312.996.6732 Visit us at: UIHealth.Care

Stockton Mayer, DO Division of Infectious Disease University of Illinois Hospital and Health Sciences 1801 W. Taylor St. Chicago, IL 60612 312-996-6732
Declaration of Dr. Stockton Mayer (DO)
I, Dr. Stockton Mayer (DO), hereby declare as follows:
I. Background
1. My name is Dr. Stockton Mayer. I am an assistant professor in the Department of Medicine at University of Illinois College of Medicine and the director of our Department’s Urban and Global Health Policy Track. I am a staff physician at the University of Illinois Hospital & Health Sciences System in the Division of Infectious Disease. I completed my Internal Medicine residency training at University of Illinois at Chicago. I completed my fellowship training in Infectious Disease at University of Illinois at Chicago. I received my medical degree from the Chicago College of Osteopathic Medicine.
2. I am an attending physician at the University of Illinois Hospital & Health Sciences System, a large public, academic, health system with a diverse patient population, with varying socioeconomic backgrounds, races/ethnicities, age, and medical conditions. I routinely work with individuals who lack access to care for their chronic diseases, and am acutely aware of how this may impact their vulnerability to infectious diseases such as COVID-19. Throughout the COVID-19 pandemic, I have staffed our Infectious Disease inpatient hospital service for our COVID-19 patients and am personally very familiar with the disease’s varying course of illness and range of presentations.
3. I am a co-investigator for Project WISH, a clinical research site of the Division of Infectious Disease at the University of Illinois at Chicago, where we conduct clinical trials and basic science research for the prevention and treatment of various infectious diseases.1
4. I am the Medical Director for the Community Outreach Intervention Projects (COIP) clinic on the West Side of Chicago and the Mobile Outreach Unit to provide primary care to those with substance use disorders. Historically, the project was formed to provide direct care to people living with HIV, particularly among those who use drugs.2
1 Project WISH, University of IL College of Medicine. https://chicago.medicine.uic.edu/departments/academicdepartments/medicine/infectious-diseases/research/project-wish/. Accessed June 10, 2020 2 Community Outreach Intervention Projects. UIC.edu. https://coip.uic.edu. Accessed June 10, 2020.

Case 5:20-cv-10829-JEL-APP ECF No. 112-3 filed 06/14/20 PageID.3832 Page 2 of 10
5. I am a clinical lead in Chicago’s Homelessness and Health Response Group for Equity (CHHRGE), where I work directly with Chicago’s Department of Public Health, and Intelligence Officers from the Centers of Disease Control and Prevention regarding Chicago’s response to the COVID-19 pandemic specifically in vulnerable, congregate facilities.3 In my role, I coordinate a “strike force” team that conducts mass testing to identify outbreaks across Chicago, and screen individuals in congregate facilities for chronic diseases, including hypertension, that would put them at greater risk for a more severe course of COVID-19. We have also created a report on how to effectively prevent COVID-19 infection among vulnerably housed populations, including shelters and other detention centers.4 As a result, I am uniquely familiar with the course and impact of COVID-19 on vulnerable individuals, in complex congregate settings.
6. My CV is attached as Exhibit A.
II. Expert Assignment
7. I submit this declaration to discuss hypertension, a chronic disease demanding careful management, and how it presents as a risk factor for more severe manifestations of COVID19 that can result in hospitalization or death.
8. I am not being compensated for my work on this case.
9. I have not testified at trial or by deposition in the last four years.
III. Hypertension
10. Hypertension comes in multiple forms. The first distinction must be made between pulmonary hypertension and systemic hypertension. Pulmonary hypertension refers to an elevated blood pressure in the pulmonary blood circuit, whereas hypertension (rarely referred to in full form as “systemic” hypertension) refers to an elevated blood pressure in the systemic blood circuit. These are considered distinct diseases with their own respective treatments, clinical presentations, and etiologies. The CDC more explicitly names pulmonary hypertension as an indicator of severe COVID-19.5 However, hypertension is far more prevalent and commonplace as a disease, and a growing body of research points towards its predictive value in identifying patients at high risk for severe COVID-19.6 The below statements, refer to “systemic” hypertension (which will be referred to as simply, hypertension).
3 Chicago Homelessness and Health Response Group for Equality. https://www.chhrge.org/. Accessed June 12, 2020. 4 The CHHRGE Report: Building an effective cross-sector partnership to address COVID-19 among vulnerably housed populations of Chicago. Chicago Homelessness and Health Response Group for Equity. https://bf48808e-82fb-4049-bb46bff7f583961d.filesusr.com/ugd/909565_780d9c4b7a4f45588070b3cd293ddd5a.pdf. Accessed June 12, 2020 5 Groups at Higher Risk of Severe Illness. CDC: Coronavirus Diseases 2019 (COVID-19). Last reviewed May 14, 2020. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Accessed June 10, 2020. 6 Rubin LJ and Hopkins W. The epidemiology and pathogenesis of pulmonary arterial hypertension (group 1). UpToDate. Literature review current through May 2020. Last updated February 29th 2020. https://www.uptodate.com/contents/the-epidemiology-and-
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11. Hypertension, or high blood pressure, is a very common disease, affecting approximately 29% of Americans, and disproportionately affecting minority and low-income communities (for instance, affecting 40.3% of non-Hispanic blacks). 51.7% of people diagnosed with hypertension have uncontrolled blood pressure, putting them at increased risk for medical complications in general.7
12. There are two types of hypertension: primary and secondary hypertension. Secondary hypertension occurs as a symptom of severe underlying chronic disease, and is not the focus of this declaration. Primary hypertension, however, predominates most cases of hypertension, and is caused by a combination of genetics, environmental factors and increases with age.8 The studies below, when referencing hypertension, are referencing primary hypertension.
13. Hypertension can cause acute symptoms such as headaches, blurry vision, chest pain and difficulty breathing. However, hypertension is often considered an asymptomatic “silent killer” as many patients with hypertension will never experience these symptoms, and can go many years undiagnosed and untreated. During this “silent” period of the disease the long term, more serious complications nevertheless occur undetected, ultimately leading to hospitalizations or death, before the hypertension is even detected.9
14. Heart disease is the most common cause of death in patients with hypertension, as it can directly cause left ventricular hypertrophy, congestive heart failure, arrhythmias and atherosclerosis of the coronary arteries. Hypertension is also the strongest risk factor for stroke, which is the second most frequent cause of death in the world. The kidney is very often damaged by high blood pressure, leading to death of the functional unit of the kidney and loss of kidney function, which further leads to higher blood pressure.6
IV. Hypertension and COVID-19: Adverse Outcomes, Morbidity and Mortality Risks Associated With COVID-19 for Patients with Underlying Hypertension
15. The CDC has identified hypertensive individuals to be at “high risk” for severe course of, or hospitalization and death from COVID-19, thereby requiring them to manage and control their
pathogenesis-of-pulmonary-arterial-hypertension-group-1?csi=e9bd09bc-6008-4350-af4b-e44823a25f89&source=contentShare. Accessed June 12, 2020. 7 Fryar CD, Ostchega Y, Hales CM, Zhang G, Kruszon-Moran D. Hypertension Prevalence and Control Among Adults: United States, 2015-2016. NCHS Data Brief (289). October 2017. https://www.cdc.gov/nchs/data/databriefs/db289.pdf. Accessed June 11, 2020 8 Kotchen TA. Hypertensive Vascular Disease. In: Jameson J, Fauci AS, Kasper DL, Hauser SL, Longo DL, Loscalzo J. eds. Harrison's Principles of Internal Medicine, 20e New York, NY: McGraw-Hill; . http://accessmedicine.mhmedical.com.proxy.cc.uic.edu/content.aspx?bookid=2129&sectionid=192030227. Accessed June 10, 2020. 9 Sawicka K, Szczyrek M, Jastrzębska I, Prasał M, Zwolak A, Daniluk J. Hypertension – The Silent Killer. J Pre Clin Clin Res. 2011;5(2):43-46. http://agro.icm.edu.pl/agro/element/bwmeta1.element.agro-1ef9e44d-f07b-4b8b-9076-1c12e479fd71/c/fulltext34.pdf. Accessed June 11, 2020.
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blood pressure.10 Due to the novelty of the COVID-19 pandemic, the gold standard for determining causality - randomized control trials where an independent risk factor can be properly isolated from confounding factors and studied - are not readily accessible or feasible given the resources needed to execute them. Instead, emerging observational data on rates of hospitalizations, mortality, and case reports are being used to identify strong correlations to inform the clinical management of our pandemic response to COVID-19. In larger observational studies, rates of hospitalizations are used as a proxy measurement for individuals who have a more severe course of COVID-19.
16. A recent study by the CDC shows that half of the patients hospitalized with COVID-19 carry a diagnosis of hypertension, which is nearly twice the baseline prevalence of hypertension in the general population.11 Two studies in New York City found rates of hypertension among hospitalized COVID-19 patients with severe disease to be 56.6% and 63%.12 This strongly suggests a very distinct, significant correlation between severe COVID-19 illness and hypertension.
17. Meta analyses and systematic reviews looking at the prevalence of underlying diseases in patients hospitalized with COVID-19 have confirmed that hypertension is the leading risk factor for more severe disease and worse outcomes worldwide.13,14,15,16,17 Another recent study out of Italy suggested that hypertension was associated with a 2.5-fold higher risk of severe disease and
10Groups at Higher Risk of Severe Illness. CDC: Coronavirus Diseases 2019 (COVID-19). Last reviewed May 14, 2020. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Accessed June 10, 2020. 11 Garg S, Kim L, Whitaker M, et al. Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020. MMWR Morb Mortal Wkly Rep 2020;69:458–464. DOI: http://dx.doi.org/10.15585/mmwr.mm6915e3. Accessed June 10, 2020. 12 Richardson S, Hirsch JS, Narasimhan M, et al. Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area. JAMA. 2020;323(20):2052–2059. April 22nd, 2020. doi:10.1001/jama.2020.6775. https://jamanetwork.com/journals/jama/fullarticle/2765184. Accessed June 10, 2020. 13 Parohan M, Yaghoubi S, Seraji A, Javanbakht MH, Sarraf P and Djalali M. Risk factors for mortality in patients with Coronavirus disease 2019 (COVID-19) infection: a systematic review and meta-analysis of observational studies, The Aging Male. Published June 8, 2020. DOI: 10.1080/13685538.2020.1774748. Accessed June 10, 2020. 14 Emami A, Javanmardi F, Pirbonyeh N, Akbari A. Prevalence of Underlying Diseases in Hospitalized Patients with COVID19: a Systematic Review and Meta-Analysis. Arch Acad Emerg Med. March 2020; 8(1): e35. http://journals.sbmu.ac.ir/aaem/index.php/AAEM/article/view/600. Accessed June 10, 2020. 15 Wang B, Li R, Lu Z, Huang Y. Does comorbidity increase the risk of patients with COVID-19: evidence from meta-analysis. Aging (Albany NY). Published April 8, 2020; 12:6049-6057. https://doi.org/10.18632/aging.103000. Accessed June 10, 2020. 16 Zuin M, Rigatelli G, Zuliani G, Rigatelli A, Mazza A, Roncon L. Arterial hypertension and risk of death in patients with COVID-19 infection: Systematic review and meta-analysis [published online ahead of print, 2020 Apr 11]. J Infect. 2020;S0163-4453(20)301894. doi:10.1016/j.jinf.2020.03.059. https://www.journalofinfection.com/article/S0163-4453(20)30189-4/fulltext. Accessed June 10, 2020. 17 Cummings MJ, Baldwin MR, Abrams D, et al. Epidemiology, clinical course, and outcomes of critically ill adults with COVID-19 in New York City: a prospective cohort study. Lancet. 2020;395(10239):1763‐1770. doi:10.1016/S0140-6736(20)31189-2. Published June 6, 2020. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31189-2/fulltext. Accessed June 10, 2020.
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mortality.18
18. Individuals with underlying hypertension who contract COVID-19 show higher mortality rates than non-hypertensive individuals. A retrospective observational study out of Wuhan by a group of researchers showed that hypertensive patients had a mortality rate of 24.8% versus non-hypertensive patients at a rate of 15.2%.19 In addition, in a summary report from the Chinese Center for Disease Control and Prevention, the case fatality rate was 2.3% for nonhypertensive individuals, versus 6.0% for those with hypertension.20 A retrospective observational study of all patients at a hospital in Wuhan, China (2877 hospitalized patients) found that even after adjustment for confounding (i.e. independent) factors, individuals with hypertension had a mortality rate that was 4 times that of individuals without hypertension.21
19. Hypertension can cause immune system dysregulation and is associated with CD8+ T cell dysfunction. CD8+ T cells are a critical component of the immune system for fighting viral infections such as COVID-19.22 Individuals with underlying hypertension are also at higher risk for COVID-19 complications such as COVID-19 pneumonia.23 Hypertension is also an independent predictor of acute kidney injury during the disease course of COVID-19.24
20. COVID-19 patients with hypertension and other cardiovascular risk factors are at greater risk of cardiovascular complications such as myocardial injury, microthrombosis (small blood clots), inflammatory infiltration of cardiac tissue, vascular inflammation, arrhythmias, and cardiac arrest.25 COVID-19 patients with underlying cardiovascular disease, including hypertension, exhibited increased myocardial (heart muscle) injury as measured by elevated
18 Lippi G, Wong J, Henry BM. Hypertension in patients with coronavirus disease 2019 (COVID-19): a pooled analysis. Pol Arch Intern Med. Published April 30, 2020;130(4):304‐309. doi:10.20452/pamw.15272. https://pubmed.ncbi.nlm.nih.gov/32231171/. Accessed June 10, 2020. 19 Huang, S., Wang, J., Liu, F. et al. COVID-19 patients with hypertension have more severe disease: a multicenter retrospective observational study. Hypertens Res (2020). Published June 1, 2020. https://doi.org/10.1038/s41440-020-0485-2. Accessed June 10, 2020. 20 Wu Z, McGoogan JM. Characteristics of and Important Lessons From the Coronavirus Disease 2019 (COVID-19) Outbreak in China: Summary of a Report of 72 314 Cases From the Chinese Center for Disease Control and Prevention. JAMA. February 24, 2020;323(13):1239–1242. doi:10.1001/jama.2020.2648. https://jamanetwork.com/journals/jama/fullarticle/2762130. Accessed June 10, 2020. 21 Gao C, Cai Y, Zhang K, et al. Association of hypertension and antihypertensive treatment with COVID-19 mortality: a retrospective observational study. Eur. Heart J. 2020;41, 2058-66. https://doi.org/10.1093/eurheartj/ehaa433. Accessed June 11, 2020. 22 Guzik TJ, Mohiddin SA, Dimarco A, et al. COVID-19 and the cardiovascular system: implications for risk assessment, diagnosis, and treatment options [published online ahead of print, 2020 Apr 30]. Cardiovasc Res. 2020;cvaa106. doi:10.1093/cvr/cvaa106. https://academic.oup.com/cardiovascres/advance-article/doi/10.1093/cvr/cvaa106/5826160. Accessed June 10, 2020. 23 Pranata, R., Lim, M. A., Huang, I., Raharjo, S. B., & Lukito, A. A. Hypertension is associated with increased mortality and severity of disease in COVID-19 pneumonia: A systematic review, meta-analysis and meta-regression. Journal of the Renin-AngiotensinAldosterone System. Published May 14th 2020. https://doi.org/10.1177/1470320320926899. Accessed June 10, 2020. 24 Palevsky PM, Radhakrishan J, Townsend RR. Coronavirus Disease 2019: Issues Related to Kidney Disease and Hypertension. UpToDate. Literature review current through May 2020, topic last updated Jun 01 2020.https://www.uptodate.com/contents/coronavirus-disease-2019-covid-19-issues-related-to-kidney-disease-and-hypertension/print. Accessed June 10, 2020. 25 Kang Y, Chen T, Mui D, et al, Cardiovascular manifestations and treatment considerations in covid-19. British Medical Journal. Heart. Published Online First: 30 April 2020. doi: 10.1136/heartjnl-2020-317056 https://heart.bmj.com/content/early/2020/04/30/heartjnl-2020-317056. Accessed June 10, 2020.
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troponin levels, a biomarker for cardiac tissue injury, with levels at 54.5% versus 13.2% of patients without any cardiovascular disease.26
21. Vascular dysfunction, or dysfunction in blood vessels, has also been identified as an adverse outcome of COVID-19. COVID-19 is particularly known to cause microthrombi (small blood clots) that can lead to more severe and potentially fatal blood clots. Hypertension is by definition a vascular disease and a comorbidity found in the majority of patients in a postmortem study of vascular dysfunction in COVID-19 patients.27 There has been recent evidence suggesting that healthy blood vessels protect children from severe outcomes associated with COVID-19, as well as evidence that adults with conditions that affect blood vessel endothelium (inner lining), such as hypertension or diabetes, are at higher risk of serious disease outcomes. The CDC has found that only 2% of COVID-19 cases in the United States are children 17 and under, who account for 22% of the total U.S. population. Only 5.7% of the children who tested positive required hospitalization.28,29
22. From the aforementioned body of data, we can, at the very minimum, conclude a strong correlation between the presence of hypertension and increased risk of hospitalization, and mortality with COVID-19. The aforementioned medical complications that arise in hypertensive patients with COVID-19 can be considered mechanisms of, or the reasons why hypertensive individuals experience more poor outcomes with added COVID-19 infection.
V. Recommendations
23. Several large COVID-19 outbreaks have occurred in immigrant detention centers due to lack of compliance with the CDC guidelines for COVID-19. At least 52 of immigrant detention centers run by Immigration and Customs Enforcement (ICE) agency have had outbreaks with over 1,800 positive cases. Incarcerated populations, including immigrants in ICE detention, are in conditions that put them at exceptionally high risk of exposure to COVID-19 due to near impossible implementation of adequate social distancing and infection control. Numerous public health officers and physicians, including ICE’s own experts, have demanded prompt action for the immediate release of individuals in ICE detention who are at risk of severe disease or death due
26 Guo T, Fan Y, Chen M, et al. Cardiovascular Implications of Fatal Outcomes of Patients With Coronavirus Disease 2019 (COVID19). JAMA Cardiol. Published online March 27, 2020. doi:10.1001/jamacardio.2020.1017. https://jamanetwork.com/journals/jamacardiology/fullarticle/2763845. Accessed June 10, 2020. 27 Menter T, Haslbauer JD, Nienhold R, et al. Post-mortem examination of COVID19 patients reveals diffuse alveolar damage with severe capillary congestion and variegated findings of lungs and other organs suggesting vascular dysfunction [published online ahead of print, 2020 May 4]. Histopathology. https://onlinelibrary.wiley.com/doi/abs/10.1111/his.14134. Accessed June 10, 2020. 28 Coronavirus Disease 2019 in Children — United States, February 12–April 2, 2020. MMWR Morb Mortal Wkly Rep Published April 10, 2020;69:422–426. DOI: http://dx.doi.org/10.15585/mmwr.mm6914e4. Accessed June 12, 2020. 29 Cyranoski D. Why children avoid the worst coronavirus complications might lie in their arteries. Nature News. 11 June 2020. https://www.nature.com/articles/d41586-020-01692-z. Accessed June 12, 2020.
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STOCKTON M. MAYER

4525 North Rockwell

Phone: (703) 282-2241

Chicago, Il. 60625

Email: stockton_mayer@hotmail.com

__________________________________________________________________________________________________________________________________________________________________________

EDUCATION 1993 – 1997 The University of Virginia

Charlottesville, VA

Bachelors of Science, Commerce

2001 – 2002

Goucher College Post-baccalaureate pre-medical science program

Towson, MD

2003 – 2008 Midwestern University

Downers Grove, IL

Doctor of Osteopathic Medicine
_________________________________________________________________________________________________________________________________________________________________________________________
EXPERIENCE

2014 – present University of Illinois Medical Center Assistant Professor – Department of Infectious Disease

Chicago, IL

2011 – 2014

University of Illinois Medical Center Fellow – Department of Infectious Disease

Chicago, IL

2008 – 2011

University of Illinois Medical Center Medical Resident – Internal Medicine

Chicago, IL

2005 – 2008

Midwestern University Pre-Doctoral Teaching Fellow

Downers Grove, IL

2000 - 2001

Booz Allen and Hamilton Consulting

McLean, VA

Consultant
• Provided U.S. textile market research for the Brazilian Chamber of Commerce