U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:20−cv−01093−GGG−KWR

CLOSED

Dada et al v. Immigration and Customs Enforcement et al Assigned to: Judge Greg Gerard Guidry Referred to: Magistrate Judge Karen Wells Roby Cause: 08:1105(a) Aliens: Habeas Corpus to Release INS Detainee
Plaintiff

Date Filed: 04/01/2020 Date Terminated: 04/06/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Tatalu Helen Dada

represented by Matthew Vogel National Immigration Project of the National Lawyers Guild 2201 Wisconsin Avenue NW Suite 200 Washington, DC 20007 718−419−5876 Fax: 617−227−5495 Email: matt@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Patrick Quigley Loyola New Orleans College of Law 7214 St. Charles Ave., Box 902 540 Broadway New Orleans, LA 70118 504−710−3074 Email: quigley77@gmail.com ATTORNEY TO BE NOTICED

Plaintiff Matilde Flores de Saavedra

represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosabel Carrera

represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sonia Lemus Tejada Dejaso

represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Patrick Quigley

Plaintiff Griselda Del Bosque
Plaintiff Nadira Sampath Grant
Plaintiff Pardeep Kumar
Plaintiff Suresh Kumar
Plaintiff Diego Carrillo Och
Plaintiff Antonio Lopez Agustin

(See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address)

Plaintiff Sirous Asgari
Plaintiff Alex Hernandez
Plaintiff Edilia Del Carmen Martinez
Plaintiff Jose Ruden Lira Arias
Plaintiff Leyanis Tamayo Espinoza
Plaintiff Viankis Maria Yanes Pardillo

ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Arnaldo Alexis Mujica Rangle

represented by Matthew Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Immigration and Customs Enforcement Diane Witte in her official capacity as Interim New Orleans Field Office Director, and Matthew T. Albence in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S.
Defendant Shawn Gillis in his official capacity as Warden
Defendant Jonathan Horton in his official capacity as Sheriff of Etowah County
Defendant Steven DeBellevue in his official capacity as Warden
Defendant David Cole in his official capacity as Warden
Defendant Keith Deville in his official capacity as Warden
Defendant Keith Peek in his official capacity as Chief Deputy

represented by Peter M. Mansfield U. S. Attorney's Office (New Orleans) 650 Poydras St. Suite 1600 New Orleans, LA 70130 504−680−3047 Email: Peter.Mansfield@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/01/2020

# Docket Text
1 PETITION Pursuant to 28:2241 (Filing fee $ 5 receipt number ALAEDC−8243730) filed by Sirous Asgari, Pardeep Kumar, Arnaldo Alexis Mujica Rangle, Matilde Flores de Saavedra, Tatalu Helen Dada, Viankis Maria Yanes Pardillo, Edilia Del Carmen Martinez, Nadira Sampath Grant, Rosabel Carrera, Diego Carrillo Och, Alex Hernandez, Jose Ruden Lira Arias, Leyanis Tamayo Espinoza, Suresh Kumar, Sonia Lemus Tejada Dejaso, Antonio Lopez Agustin, Griselda Del Bosque. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)Attorney Matthew Vogel added to party Sirous Asgari(pty:pla), Attorney Matthew Vogel added to party Rosabel Carrera(pty:pla),

04/01/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020

Attorney Matthew Vogel added to party Diego Carrillo Och(pty:pla), Attorney Matthew Vogel added to party Tatalu Helen Dada(pty:pla), Attorney Matthew Vogel added to party Griselda Del Bosque(pty:pla), Attorney Matthew Vogel added to party Edilia Del Carmen Martinez(pty:pla), Attorney Matthew Vogel added to party Matilde Flores de Saavedra(pty:pla), Attorney Matthew Vogel added to party Alex Hernandez(pty:pla), Attorney Matthew Vogel added to party Pardeep Kumar(pty:pla), Attorney Matthew Vogel added to party Suresh Kumar(pty:pla), Attorney Matthew Vogel added to party Jose Ruden Lira Arias(pty:pla), Attorney Matthew Vogel added to party Antonio Lopez Agustin(pty:pla), Attorney Matthew Vogel added to party Arnaldo Alexis Mujica Rangle(pty:pla), Attorney Matthew Vogel added to party Nadira Sampath Grant(pty:pla), Attorney Matthew Vogel added to party Leyanis Tamayo Espinoza(pty:pla), Attorney Matthew Vogel added to party Sonia Lemus Tejada Dejaso(pty:pla), Attorney Matthew Vogel added to party Viankis Maria Yanes Pardillo(pty:pla).(Vogel, Matthew) (Attachment 1 replaced on 4/2/2020) (pp). (Attachment 2 replaced on 4/2/2020) (pp). (Entered: 04/01/2020)
2 EXPARTE Emergency MOTION for Temporary Restraining Order by Sirous Asgari, Rosabel Carrera, Diego Carrillo Och, Tatalu Helen Dada, Griselda Del Bosque, Edilia Del Carmen Martinez, Matilde Flores de Saavedra, Alex Hernandez, Pardeep Kumar, Suresh Kumar, Jose Ruden Lira Arias, Antonio Lopez Agustin, Arnaldo Alexis Mujica Rangle, Nadira Sampath Grant, Leyanis Tamayo Espinoza, Sonia Lemus Tejada Dejaso, Viankis Maria Yanes Pardillo. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Affidavit, # 4 Exhibit Sirous Asgari Decl., # 5 Exhibit Rosabel Carrera Decl., # 6 Exhibit Diego Carrillo Och Decl., # 7 Exhibit Tatalu Helen Dada Decl., # 8 Exhibit Griselda Del Bosque Decl., # 9 Exhibit Edilia Del Carmen Marinez Decl., # 10 Exhibit Matilde Flores de Saavedra Decl., # 11 Exhibit Alex Hernandez Decl., # 12 Exhibit Pardeep Kumar Decl., # 13 Exhibit Suresh Kumar Decl., # 14 Exhibit Jose Ruben Lira Arias Decl., # 15 Exhibit Antonio Lopez Agustin Decl., # 16 Exhibit Arnaldo Alexis Mujica Rangle Decl., # 17 Exhibit Nadira Sampath Grant Decl., # 18 Exhibit Leyanis Tamayo Espinoza Decl., # 19 Exhibit Sonia Lemus Tejada Damaso Decl., # 20 Exhibit Viankis Maria Yanes Pardillo Decl., # 21 Exhibit Lydia Bazzano Decl., # 22 Exhibit Jaimie Meyer Decl., # 23 Exhibit Lily Axelrod Decl., # 24 Exhibit Veronica Fernandez−Diaz Decl., # 25 Exhibit Joseph Giardina Decl., # 26 Exhibit Lois Gutierrez Decl., # 27 Exhibit Katrina Huber Decl., # 28 Exhibit Homero Lopez Decl., # 29 Exhibit Laura Rivera Decl., # 30 Exhibit Paul Scott Decl., # 31 Exhibit Emily Trostle Decl., # 32 Exhibit Mariel Villarreal Decl., # 33 Exhibit Jessica Myers Vosburgh Decl.)(Vogel, MModified on 4/6/2020 (mm). (Entered: 04/01/2020)
3 Initial Case Assignment to Judge Greg Gerard Guidry and Magistrate Judge Karen Wells Roby. (cc) (Entered: 04/02/2020)
4 Correction of Docket Entry by Clerk re 1 Petition Pursuant to 28:2241. **Filing attorney did not properly format the pdf of Civil Cover Sheet and Summons. The pdf should not have the purple boxes nor the 3 red buttons at the bottom. When using a FORM, fill in the applicable fields then click the red PRINT button at the bottom to print the document to pdf format. Clerk has taken corrective action. No further action necessary.** (pp) (Entered: 04/02/2020)
5 Summons Issued as to David Cole, Steven DeBellevue, Keith Deville, Shawn Gillis, Jonathan Horton, Immigration and Customs Enforcement, Keith Peek. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(pp) (Entered: 04/02/2020)
6 ORDER re 2 Emergency MOTION for Temporary Restraining Order: IT IS ORDERED that, if not previously accomplished, electronic posting of this Order and Plaintiffs' 2241 habeas petition shall effect service upon the United States Attorney of the petition, motion for temporary restraining order, and all supporting documents. Service upon the United States Attorney is Deemed to be service upon the named Respondents−Defendants. FURTHER ORDERED that the defendants shall file a response to Plaintiffs' Motion for Temporary Restraining Order by 04/03/2020 at 5:00 pm. Plaintiffs shall file a reply by 04/04/2020 by 5:00 pm. IF the Court deems either oral argument or a status conference necessary, it will inform the parties by email and conduct a telephonic proceeding to be held at 4/6/2020 10:00 AM before Judge Greg Gerard Guidry. FURTHER ORDERED that Defendants' response, as well as Plaintiffs' reply address the threshold issue of whether this Court has jurisdiction to entertain

04/03/2020 04/04/2020
04/04/2020 04/04/2020 04/06/2020 04/06/2020 04/06/2020

Plaintiffs' petition. Signed by Judge Greg Gerard Guidry on 04/02/2020.(ko) (Entered: 04/02/2020)
7 RESPONSE/MEMORANDUM in Opposition filed by Immigration and Customs Enforcement re 2 Emergency MOTION for Temporary Restraining Order. (Attachments: # 1 Exhibit 1 (Declaration of Michael Nelson))(Mansfield, Peter) (Entered: 04/03/2020)
8 EXPARTE/CONSENT MOTION for Leave to File Reply in Excess Pages to Plaintiff's Memorandum in Oppostion to Motion re: rec. doc. 2 by Sirous Asgari, Rosabel Carrera, Diego Carrillo Och, Tatalu Helen Dada, Griselda Del Bosque, Edilia Del Carmen Martinez, Matilde Flores de Saavedra, Alex Hernandez, Pardeep Kumar, Suresh Kumar, Jose Ruden Lira Arias, Antonio Lopez Agustin, Arnaldo Alexis Mujica Rangle, Nadira Sampath Grant, Leyanis Tamayo Espinoza, Sonia Lemus Tejada Dejaso, Viankis Maria Yanes Pardillo. (Attachments: # 1 Proposed Order)(Vogel, Matthew) (Entered: 04/04/2020)
9 REPLY to Response to Motion filed by All Plaintiffs re 2 Emergency MOTION for Temporary Restraining Order. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Vogel, Matthew) Modified text on 4/6/2020 (mm). (Filed Per Order at rec. doc. 10.) (Entered: 04/04/2020)
10 TEXT ORDER (No PDF Document Attached) granting 8 Motion for Leave to File REPLY to Response to Motion filed by All Plaintiffs re 2 Emergency MOTION for Temporary Restraining Order Emergency in Excess of 10 Pages. Signed by Judge Greg Gerard Guidry on 4/4/2020. (tjg) (Entered: 04/04/2020)
11 Habeas Corpus Response Order that the United States Attorney for the Eastern District of Louisiana respond to the petition of Habeas Corpus on or before 05/04/2020. Signed by Judge Greg Gerard Guidry on 04/06/2020.(ko) (Entered: 04/06/2020)
12 ORDER DISMISSING CASE without prejudice. The Petition is dismissed as set forth in document. Signed by Judge Greg Gerard Guidry on 04/06/2020.(ko) (Entered: 04/06/2020)
13 JUDGMENT entered in favor of Defendants and against Plaintiffs and all claims in the above−captioned matter are dismissed without prejudice. Signed by Judge Greg Gerard Guidry on 04/06/2020.(ko) (Entered: 04/06/2020)

 
 Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

DADA, et al.,

Petitioners-Plaintiffs,

Civil Action No.: 2:20-cv-01093

v. WITTE, et al.,

ORAL ARGUMENT REQUESTED

Respondents-Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 2 of 27
INTRODUCTION Today’s global pandemic of the COVID-19 virus is the worst the world has seen since 1918. Public health experts have admonished that the only effective way to reduce the risk of severe illness or death for vulnerable individuals is sustained social distancing and vigilant hygiene. Such measures are impossible to achieve in crowded detention centers. For this reason, health care professionals – including two of the Department of Homeland Security’s own medical experts – have urgently called for the release of detained immigrants, particularly elderly or medically vulnerable ones.1 Yet, Respondent-Defendants (“Defendants”) continue to detain thousands of individuals in facilities in the New Orleans ICE Field Office’s jurisdiction and across the country, including those at severe risk of serious illness or death, despite the ready availability of release, including under community-based alternatives to detention. Petitioner-Plaintiffs (“Plaintiffs”) are seventeen individuals detained in the custody of the New Orleans ICE Field Office in detention centers in Louisiana, Mississippi, and Alabama who, due to their age and pre-existing medical conditions, are particularly vulnerable to serious illness or death if infected by COVID-19. While detained, it will be impossible to engage in necessary social distancing practices to protect themselves and others; they are vulnerable to infection because they eat, sleep and otherwise comingle in tight proximity to others and because sanitary conditions in these facilities is poor, lacking sufficient, basic supplies of soap and hand sanitizer. Even with the measures ICE is attempting so as to limit the spread of COVID-19, immigration detention centers are a hotbed for spread of the virus, which broadly endangers public health and will strain vulnerable hospital systems. For at-risk individuals like Plaintiffs, protection from the virus is a matter of life or death. The danger posed by Plaintiffs’ continued detention
1 Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN, Mar. 20, 2020, available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 3 of 27
during the COVID-19 pandemic 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). Without this Court’s intervention, Plaintiffs will continue to face the imminent risk of severe illness or death. Release – which this Court, like many others who have already acted, is fully authorized to order – is the only meaningful way to protect Plaintiffs from grave, irreparable harm.
FACTUAL BACKGROUND I. COVID-19 Is an Unprecedented and Lethal Global Pandemic.
COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Jaimie Meyer Decl. ¶20. It can result in severe and widespread damage to lungs, heart, liver, or other organs. In many cases, COVID-19 results in death. Id. ¶ 21. A patient’s condition can seriously deteriorate within days.2
Those who develop serious complications will need advanced medical support. Id. ¶ 22. This level of support is especially difficult to provide for detained individuals. See id. ¶¶ 16, 3233. The need for advanced medical care and the likelihood of death are much greater from COVID19 infection than from influenza. See Id. ¶ 19.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Id. ¶ 19. The only effective measure to reduce the risk of infection and thus severe illness or death to vulnerable individuals is to enforce regular social distancing (remaining physically separated from known or potentially infected individuals) and vigilant hygiene, including frequently washing hands with soap and water. See Id. ¶¶ 9-12.
2 Centers for Disease Control and Prevention, “Clinical Presentation” Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Mar. 31, 2020) available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 4 of 27
II. COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have Underlying Health Concerns.
Older individuals and those with certain medical conditions face greater chances of serious
illness or death from COVID-19. Id. ¶¶ 21. Certain underlying medical conditions increase the risk
of serious COVID-19 disease for individuals of any age, including but not limited to lung disease,
chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems,
blood disorders, inherited metabolic disorders, stroke, and pregnancy. Id.; Bazzano Decl. ¶ 8.
Individuals detained in immigration detention centers, including those in the New Orleans Field
Office area of responsibility, are also more susceptible to experiencing complications from
infectious diseases than the population at large. Jaimie Meyer Decl. ¶ 14. This is especially true
for the following Plaintiffs, with underlying conditions such as diabetes, lung disease, kidney
disease, or other illness. Id. ¶ 13.
● Tatalu Helen Dada suffers from asthma, Grave’s Disease, hypothyroidism, hypertension, malnutrition, and vision loss, and has been hospitalized numerous times due to her rapidly deteriorating health all putting her at a high risk of severe complications or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ g. She has a place to live if released. Cplt ¶ 22.
● Matilde Flores de Saavedra is 78 and suffers from uncontrolled diabetes and hypertension which puts her at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ i. She has a place to live if released. Cplt ¶ 23.
● Sirous Asgari is 59 years old, and suffers from chronic lung conditions, hypertension, and liver disease. His medical conditions put him at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ q. He has a place to live if released. Cplt ¶ 24.
● Suresh Kumar suffers from Hepatitis C, malnutrition, and chronic pain, and is immunocompromised. His medical conditions put him at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ k. He has a place to live if released. Cplt ¶ 37.
● Pardeep Kumar suffers from malnutrition, is immunocompromised, and has failing kidneys. These medical conditions put him at high risk of severe illness or death if he contracts COVID19. Lydia Bazzano Decl. ¶ l. He has a place to live if released. Cplt ¶ 38.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 5 of 27
● Diego Carrillo Och is 65 years old. Due to his age, he is at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ j. He has a place to live if released. Cplt ¶25.
● Rosabel Carrera is 59 years old and suffers from diabetes. She also has a history of stroke and suffers from heart disease, hypertension, arthritis, and vision loss. She is at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ f. She has a place to live if released. Cplt ¶27.
● Edilia Del Carmen Martinez suffers from diabetes, putting her at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶c. She has a place to live if released. Cplt ¶28.
● Jose Ruben Lira Arias suffers from uncontrolled diabetes and hypertension, putting him at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ a. He has a place to live if released. Cplt ¶29.
● Leyanis Tamayo Espinoza suffers from diabetes, hypertension, chronic renal issues, and malnutrition. Her medical conditions put her at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ b. She has a place to live if released. Cplt ¶30.
● Viankis Maria Yanes Pardillo is 59 years old and suffers from epilepsy, and has suffered numerous seizures while in detention. Her age puts her at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ d. She has a place to live if released. Cplt ¶31.
● Arnaldo Alexis Mujica Rangle is 63 years old and suffers from diabetes, hypertension, high cholesterol, vision loss, and chronic pain, putting him at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ e. He has a place to live if released. Cplt ¶ 32.
● Sonia Lemus Tejada Dejaso suffers from heart disease and hypertension, putting her at a high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ h. She has a place to live if released. Cplt ¶33.
● Griselda Del Bosque is 59 years old and suffers from severe asthma putting her at high risk of severe illness or death if she contracts COVID-19. Lydia Bazzano Decl. ¶ n She has a place to live if released. Cplt ¶ 34.
● Nadira Sampath Grant suffers from diabetes and diabetic related complications such as neuropathy and issues with her kidneys putting her at high risk of severe illness or death is she contracts COVID-19. Lydia Bazzano Decl. ¶ m. She has a place to live if released. Cplt ¶ 35.
● Antonio Lopez Agustin suffers from heart disease and hypertension and has been designated as a person with high-risk medical conditions. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ p.. He has a place to live if released. Cplt ¶ 36.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 6 of 27

● Alex Hernandez suffers from hypertension and Barrett’s esophagus, a condition that puts him at higher risk for cancer. His hypertension puts him at a high risk of severe illness or death if he contracts COVID-19. Lydia Bazzano Decl. ¶ o. He has a place to live if released. She has a place to live if released. Cplt ¶ 26. III. Relevant ICE Detention Facilities Are Ticking Time Bombs; They Do Not, and Cannot, Meet Public Health Standards to Prevent Widespread Infections. The LaSalle, Winn, and Richwood facilities are located in Louisiana; the Adams facility is
located in Mississippi near the Louisiana border; and the Etowah facility is located in Alabama.3 As of March 31, 2020, there were over 5,230 COVID-19 cases in Louisiana, 1,073 in Mississippi, and 1,000 in Alabama.4 Twenty-two people in Mississippi have died from the disease, seventeen people in Alabama, and 239 people in Louisiana.5 These data include cases in all of the counties in which these facilities are located.
Detention centers present a particularly high risk of outbreaks, which is exemplified by the skyrocketing numbers of cases in New York City jails. Jaimie Meyer Decl. ¶¶7-17. The only effective way to prevent infection is to practice proper hygiene and, crucially, social distancing: maintaining a distance of at least six feet between oneself and others. Id. ¶¶11, 20. But several Plaintiffs describe conditions in these facilities that render it impossible to practice social distancing: many sleep in dorms that they share with over 50 other individuals, in beds— sometimes double- or triple-bunk beds—that are well under six feet apart, in some cases less than two feet apart (Tatalu Dada Decl. ¶¶15-16; Alex Hernandez Decl. ¶7; Antonio Agustin Decl. ¶9;

3 Detention Facility Locator, U.S. Immigration and Customs Enforcement, available at

https://www.ice.gov/detention-facilities. 4 Louisiana Department of Health, Coronavirus (COVID-19) (March 29, 2020), http://ldh.la.gov/coronavirus/;

Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (March 29, 2020),

https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease

2019

(COVID-19),

Alabama

Public

Health

(March

29,

2020),

http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html. 5 Id.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 7 of 27
Arnaldo Rangle Decl. ¶9; Diego Carillo Och Decl. ¶4; Edilia Martinez Decl. ¶8; Griselda del Bosque Decl. ¶8; Jose Arias Decl. ¶7; Leyanis Espinoza Decl. ¶18; Matilde de Saavedra ¶5; Rosabel Carrera Decl. ¶10; Dejaso Decl. ¶7; Sirous Asgari Decl. ¶18; Nadira Grant Decl.; ¶6). They share bathrooms and dining halls (Id.), and in one case forty-four men share one shower. Sirous Asgari Decl. ¶18. To make matters worse, Defendants have not adopted adequate mitigation measures: the staff at detention centers do not wear masks or gloves (Tatalu Dada Decl. ¶¶15-16; Alex Hernandez Decl. ¶ 5; Antonio Agustin Decl. ¶9; Arnaldo Rangle Decl. ¶8; Diego Carillo Och Decl. ¶5; Griselda Del Bosque Decl. ¶5; Jose Arias Decl. ¶5; Leyanis Espinoza Decl. ¶17; Matilde de Saavedra ¶7; Rosabel Carrera Decl. ¶11; Suresh Kumar Decl. ¶8; Sirous Asgari Decl. ¶14; Nadira Grant Decl. ¶5), and Plaintiffs do not have adequate access to soap or hand sanitizer (Nadira Grant Decl. ¶5; Alex Hernandez Decl. ¶5; Griselda Del Bosque Decl. ¶7; Jose Arias Decl. ¶9; Layanis Espinoza Decl. ¶15; Tatalu Dada Decl. ¶16). Plaintiffs also describe instances where individuals who are ill – including those presenting symptoms consistent with COVID-19 – are not tested or given adequate medical care. Alex Hernandez Decl. ¶ 5; Diego Carillo Och. Decl. ¶ 2; Nadira Grant Decl. ¶ 7; Antonio Augustin Decl. ¶ 7; Griselda Del Bosque Decl. ¶ 9; Jose Arias Decl. ¶ 4; Layanis Espinoza Decl. ¶ 10; Tatalu Dada Decl. ¶ 15.
COVID-19 appears to have already reached at least some of the immigration detention centers in Louisiana. Katrina Huber decl. ¶ 10 Dorms at Pine Prairie, Winn, and Basile are currently under indefinite quarantine. Id. There is an immediate and impending threat that COVID19 will become widespread in these detention centers. In fact, in the absence of widespread testing, there is no way to be certain that infection is not already present across other facilities. Once one person in a detention facility contracts the virus, it spreads quickly because individuals in detention centers live, sleep, eat, and use the bathroom in close proximity with others, which “make it

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 8 of 27
difficult if not impossible to contain transmission.” Bazzano Decl. ¶ 14.And, given the daily entry of staff and guards from the community, and the continued influx and transfer of dozens of new people into detention facilities on a daily or weekly basis, see, e.g., Asgari Decl. ¶¶ 13, 17; Sampath Grant Decl. ¶ 7; Del Bosque Decl. ¶ 9; Tamayo Espinoza Decl. ¶ 18, it is only a short matter of time before the disease becomes widespread throughout all of these detention centers.
IV. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease.
As these conditions show, Defendants have not and cannot ensure mitigation of COVID19 in ICE detention facilities. Lydia Bazzano Decl. ¶15. While ICE policy is to test and isolate those who are at high epidemiologic risk, this is insufficient: not everyone who contracts the virus is symptomatic, and few detention centers have negative pressure rooms, which are required to prevent spread of the virus from the isolated individual’s room to others. Jaimie Meyer Decl. ¶14; Matter of Extradition of Toledo Manrique, No. 19MJ71055MAG1TSH, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“symptoms of COVID-19 can begin to appear 2-14 days after exposure, so screening people based on observable symptoms is just a game of catch up”).
Further, although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers.6 Jaimie Meyer Decl. ¶ 8. Detained individuals are also frequently transported to, from, and between facilities. Id. Given the general lack of available testing, it is impossible for detention facilities to consistently and adequately screen detained persons and staff for new, asymptomatic infection. Id. ¶30. Anything short of aggressive screening and testing of detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE
6 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/covid19.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 9 of 27
nor the Louisiana, Mississippi, and Alabama detention facilities have the resources necessary to engage in such an effort. Id. ¶¶25-30; Bazzano Decl. ¶ 15.
Importantly, the COVID-19 pandemic—and ICE’s unsatisfactory response to it—will significantly strain ICE’s already broken medical care system, while the medical system in surrounding areas is expected to soon be overloaded, significantly reducing the capacity to provide emergency, life-saving medical care to all. Lydia Bazzano Decl. ¶¶ 7-9. Long before the COVID19 outbreak, numerous reports (including by DHS itself) have identified serious and substantial flaws in ICE’s medical care system. Compl. ¶137.
V. The Consensus of Public Health Experts is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect them From Serious Illness or Death.
Public health experts with experience in immigration detention have recommended the release of vulnerable individuals from detention. Two DHS medical experts sent a letter to Congress warning of the severe public health risks of keeping individuals detained and recommending release of most persons in immigration detention.7 A former Acting Director of ICE has stated that ICE “can, and must, reduce the risk [COVID-19] 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.”12
Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. Meyer Decl. ¶¶16, 35-37. In case of an outbreak at a detention center, those institutions would bear the brunt of having to treat infected individuals from
7 Letter from Dr. Scott Allen and Dr. Josiah Rich, to House Comm. on Homeland Sec., Mar. 19, 2020, available at https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-CongressRe.html#document/p4/a557238; Catherine Shoichet, Doctors Warn of “Tinderbox Scenario” If Coronavirus Spreads in ICE Detention, CNN.com, Mar. 20, 2020, available at https://www.cnn.com/2020/03/20/health/doctorsice-detention-coronavirus/index.html.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 10 of 27
detention centers and would have fewer medical resources available for the general population. Id. ¶16. Governments worldwide have recognized the threat posed by the spread of COVID-19 among detained and incarcerated populations and have released detained persons in response. For example, Iran temporarily released more than 70,000 people to curb the spread of the virus. Id. ¶ 24. In the United States, several jurisdictions including Los Angeles, New York, and Chicago have also released detained individuals for the same reasons, as has New Orleans. Compl. ¶154.
Dr. Meyer has concluded that “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level or risk both for those within those facilities and for the community at large. Jaimie Meyer Decl. ¶ 35. Dr. Meyer recommends “that individuals who are already in [ICE facilities] be evaluated for release,” and that “[t]his is more important still for individuals with preexisting conditions… or who are over the age of 65.” Id. ¶¶ 35-36. In light of Plaintiffs’ medical conditions, Dr. Bazzano has determined that Plaintiffs face a substantial risk of severe illness or death as a result of continued detention. Lydia Bazzano Decl. ¶¶ a-q.
ARGUMENT Under Rule 65 of the Federal Rules of Civil Procedure, a movant is entitled to temporary restraining order to preserve the status quo—here, the health and lives of Plaintiffs—by showing: (1) a substantial likelihood of success on the merits of their claims for relief; (2) a substantial threat of in irreparable injury absent the injunction; (3) that the threatened injury outweighs any damage that injunction may cause the opposing party; and (4) that the injunction will not disserve public interest. Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192, 195 (5th Cir.2003). The Court likewise has wholly independent authority under habeas corpus, 28 U.S.C. § 2241, to order immediate release from unconstitutional confinement.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 11 of 27
There is voluminous evidence in the record showing that Plaintiffs are particularly vulnerable to severe illness and death, through highly likely exposure to the surging COVID-19 virus. The evidence demonstrating the serious risk they face to their health, including a risk of death, constitutes the clearest form of irreparable harm that the law recognizes. In contrast, Defendants can identify no sufficiently countervailing interest in continuing to subject those in civil immigration detention to such a grave health risk. In the last two weeks, dozens of courts have recognized as much and ordered detained persons released. Because subjecting persons in civil immigration detention to such dangerous conditions of confinement is punitive as well as recklessly indifferent to the known risks Plaintiffs face, and because continued detention in the face of such risks serves no legitimate nonpunitive government interest, Plaintiffs are likely to succeed on the merits of their substantive due process claims. And, because Plaintiffs face severe practical limitations on counsel access and procedures such as a bond hearing to vindicate their fundamental right to be free from unjustified detention, they are likely to succeed on their procedural due process claim.
Detaining these vulnerable individuals for civil immigration purposes contrary to expert consensus that they face substantial risk of illness or death represents the height of arbitrary detention and compels judicial intervention. Plaintiffs’ lives are at stake. I. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A
TEMPORARY RESTRAINING ORDER “Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 582–83 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 2017) (quotations omitted). The Fifth Circuit requires only a

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 12 of 27
“substantial threat” of irreparable injury, DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996), which is defined as “harm for which there is no adequate remedy at law,” such as monetary damages. Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013).
Without emergency relief from this Court, Plaintiffs face a substantial threat of imminent and irreparable injury, including death—harms no court can otherwise remediate. See In re Bahadur, 2020 WL 956362, at *14 (W.D. Tex. Feb. 27, 2020); Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004) (irreparable harm found where late detection of cancer could lead to death). Short of death, Plaintiffs are at grave risk of contracting severe and potentially lifelong medical conditions, which also establishes irreparable harm. See, e.g., M.R. v. Dreyfus, 697 F.3d 706, 729 (9th Cir. 2012); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996); see also Unknown Parties v. Johnson, No. CV-15-00250-TUC (DCBx), 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (irreparable harm where evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”).
Given their age and medical vulnerabilities, even those Plaintiffs who survive COVID-19 are likely to suffer lifelong ailments including neurologic damage and the loss of respiratory capacity, and may require extensive rehabilitation or profound reconditioning. And, short of release, there are no sufficient measures—preventative or palliative—that Defendants can implement to protect Plaintiffs, from crowded, unsanitary conditions. Lydia Bazzano Decl. ¶ ¶ 16-18. Medical experts conclude that COVID-19 poses unprecedented threats to the safety of these individuals—and those who come in contact with them, including ORR and ICE staff,

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 13 of 27
healthcare providers, and local populations—and must be released. Jaimie Meyer Decl. ¶ ¶ 3537; Lydia Bazzano Decl. ¶ ¶ 16-18.
Plaintiffs can also satisfy demonstrate irreparable harm through a showing, see infra Section II, that Defendants have violated their constitutional rights. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012); Castillo v. Barr, CV 20-00605 TJH (AFMx), ECF No. 32 (concluding that “[a] civil detainee’s constitutional rights are violated if a condition of his confinement places him at substantial risk of suffering serious harm, such as the harm caused by a pandemic”). II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR DUE PROCESS CLAIMS
A. Plaintiffs’ Continued Detention Violates Their Due Process Right To Protection From Harm And To Be Free From Punitive Conditions.
When the State holds individuals in its custody, the Constitution imposes an obligation to provide for their basic human needs, including medical care and reasonable safety. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989).
The rationale for this principle is simple enough: 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. (citations omitted); accord Hare v. City of Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998).
1. Because They Are In Civil Detention, Plaintiffs Have a Right to be Free From Punitive Conditions Of Detention in ICE Detention Facilities.
A person in civil immigration detention has due process rights that are, at a minimum, similar to those of a person detained in pretrial detention prior to an adjudication of guilt,

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 14 of 27
Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).8 At a minimum, due process mandates that those in civil detention not be punished. Hare, 74 F.3d at 639. See also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Where the Eighth Amendment protects individuals in prison from punishment that rises to “cruel and unusual,” the Due Process Clause protects individuals in detention from any punishment. Therefore, persons in civil immigration detention 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.
A condition of detention amounts to impermissible punishment when “it is not reasonably related to a legitimate goal,” if it is “excessive” in relation to a legitimate goal,” or if it is otherwise “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.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); Hare, 74 F.3d at 640. To make this showing, an individual in detention need not demonstrate the defendant’s subjective or malicious intent to punish. Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or 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.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects an individual in detention to the risk of serious injury or death likewise amounts to punishment. Shepherd, 591 F.3d at 454.
8 Some courts have held that individuals in immigration detention have greater protections than those in pretrial detention because they rarely implicate penological interests associated with criminal confinement or suspicion. In re Kumar, 402 F. Supp. 3d 377, 384 (W.D. Tex. 2019); Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). The Kumar court applied the Youngberg civil commitment standard to the immigration detention context, which asks whether “defendants’ conduct was ‘such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff.’” Youngberg v. Romeo, 457 U.S. 307, 314 (1982). There can be no professional medical or penological judgment that could reasonably support the continued detention of elderly and/or medically compromised individuals in immigration detention in crowded, precarious conditions that subject them to a certain risk of contagion, illness or death.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 15 of 27
In Shepherd, the Fifth Circuit found that a “jail’s evaluation, monitoring, and treatment of inmates with chronic illness was [...] grossly inadequate due to poor or non-existent procedures and understaffing of guards and medical personnel,” that “serious injury and death were the inevitable results of the jail's gross inattention to the needs of inmates with chronic illness,” and that this amounted to punishment. Shepherd., 591 F.3d at 454. Similarly, in Duvall, the Fifth Circuit affirmed a jury’s finding that Dallas County had an unconstitutionally punitive custom or policy when it allowed infections of Methicillin-Resistant Staphylococcus Aureus (MRSA) to be present in a jail, and failed to take necessary measures for eradication. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208-209 (5th Cir. 2011).
Given the cramped, unsanitary, and irremediable conditions in ICE detention facilities, Plaintiffs face a demonstrably substantial risk of contracting COVID-19. Once they are exposed, they are all vulnerable to severe illness or death, either because of their age, or because they have underlying medical conditions, including: asthma, heart disease, compromised immune system, chronic renal issues, liver disease, susceptibility to lung disease, and diabetes. Continued detention of Plaintiffs is an imminent threat to their lives that is clearly excessive in relation to any purported government goal, and therefore amounts to punishment.
B. Continuing Detention Constitutes Deliberate Indifference to a Substantial Risk of Serious Harm.
In addition to affirmatively imposing punitive conditions of confinement, supra Section II(A)(2), an official violates the Due Process Clause if the official has “acted or failed to act with deliberate indifference to the detainee's needs.” Hare, 74 F.3d at 648.9 Courts find deliberate indifference when a detained person can show: (1) “that he is incarcerated under conditions
9 Any condition that violates the Eighth Amendment rights individuals who are in prison, necessarily amounts to punishment of individuals in civil immigration detention and thereby violates the due process rights of Plaintiffs.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 16 of 27
posing a substantial risk of serious harm,” and (2) “that the official was deliberately indifferent to inmate health or safety.” Hare, 74 F.3d at 648 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). Under the second prong, the Fifth Circuit asks whether the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018).The Fifth Circuit holds that a detained person “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (emphasis added). In Gates, where individuals on Death Row challenged overheated temperatures as violating the Eighth Amendment, the Fifth Circuit upheld a finding that the plaintiffs faced a substantial risk of serious harm based on expert testimony substantiating a likelihood of death. Cook, 376 F.3d at 339. But showing a likelihood of actual death is not required. As the Supreme Court ruled, housing individuals in crowded conditions where they are at risk of infectious disease is unconstitutional even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed,” and prison officials cannot be “deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). See also Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (prison conditions, including the fact that “inmates with serious contagious diseases are allowed to mingle with the general prison population,” violate the Eighth Amendment).
In light of their age and medical vulnerability, and the impossibility of enforcing appropriate social distancing and sanitation measures, see supra, Factual Background Sec. II-V, Plaintiffs’ continued detention puts them at substantial risk of serious harm. Numerous courts

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 17 of 27
across the country sitting in jurisdictions with palpable COVID-spread—only days ahead of
Louisiana’s—have recognized the heightened risk to individuals in detention and have ordered
their release.10 Louisiana has the fastest COVID-19 spread rate of any region in the world, and
Mississippi has the twelfth-highest infection rate in the country, (Compl. ¶ 72). The substantial
risk of serious harm to individuals in detention is imminent.
Defendants have actual knowledge of this substantial risk and are deliberately indifferent
to it. The risk of COVID-19 to the health and lives of medically vulnerable individuals is front-
page national and local news on a daily basis and, at this point, utterly obvious. See Harris v.
Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (“A prison official’s knowledge of a substantial risk
of harm may be inferred by the obviousness of the substantial risk”). ICE’s Guidance on
COVID-19 recognizes these risks, and ICE’s prohibition on social visitation demonstrates a
recognition of the importance of social distancing.11 Medical experts from within DHS itself
have described the risk of this virus to those in immigration detention.12 ICE has received
numerous letters from experts, Members of Congress, and non-governmental organizations
alerting it to the risk of COVID-19.13 Persons in immigration detention have protested against
10 See, e.g., Thakker, et. al. v. Doll, et. al., No 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020); Fraihat v. Wolf, et. al., ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar 30, 2020); Coronel, et al. v. Decker, No. 1:20-cv-
02472-AJN (S.D.N.Y. Mar. 27, 2020); Calderon v. Cronen, No. 18-10225 (MLW), ECF. 507 (D. Mass. Mar. 26, 2020); Umana Jovel v. Thomas Decker, et al., No. 1:20-cv-00308-GBD-SN (S.D.N.Y. Mar. 24, 2020); Basank, et. al. v. Decker, et al., No. 1:20-cv-02518-AT, (S.D.N.Y. Mar. 26, 2020); Xochihua-Jaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020); In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).; Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020); United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020). 11 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19. 12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, Mar. 20, 2020, available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html. 13 Letter from 763 non-governmental organizations to Matthew T. Albence, Acting Director of ICE, Mar. 19, 2020, available at https://www.detentionwatchnetwork.org/sites/default/files/ICE%20Response%20to%20Coronavirus%20for%20Peo ple%20Detained%20-%20Organizational%20Sign%20on%20Letter%20-%20Final.pdf; Letter from Rep. Carolyn Maloney and Rep. Jamie Raskin to Acting Secretary of DHS Chad Wolf (Mar. 11, 2020), available at

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 18 of 27
the conditions that render them vulnerable during this pandemic.14 The World Health
Organization and the U.S. Centers for Disease Control have emphasized the risk of this disease,
its infectiousness, and its severity in those with underlying medical conditions.15 There are daily
news articles about the death toll of COVID-19 and its impact on those with underlying medical
conditions, particularly those in detention.16 In the face of this overwhelming evidenced
Defendants continued detention of Plaintiffs amounts to deliberate indifference.
C. ICE Lacks A Constitutionally Adequate Purpose For Continued Detention.
Non-criminal confinement “constitutes a significant deprivation of liberty that requires due
process protection,” and, thus, the government “must have ‘a constitutionally adequate
purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting
O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)). Accordingly, courts must ensure that the
nature and duration of confinement bear “some reasonable relation to the purpose for which the
individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); Brown v. Taylor, 911
F.3d 235, 243 (5th Cir. 2018). Once a valid basis for detention no longer exists, substantive due
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-0311.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf. 14 Alejandro Lazo, Protests, Hunger Strikes Erupt Over Coronavirus in Immigration Detention. The Wall Street Journal, Mar. 27, 2020, available at https://www.wsj.com/articles/protests-hunger-strikes-erupt-over-coronavirus-inimmigration-detention-11585320903; Debbie Nathan, Women in ICE Detention, Fearing Coronavirus, Make Video to Protest Unsafe Conditions, The Intercept (Mar. 30, 2020), available at https://theintercept.com/2020/03/30/coronavirus-ice-detention/. 15 Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Center for Disease Control (accessed Mar. 27, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html; Coronavirus disease 2019 (COVID-19) Situation Report – 51, World Health Organization (accessed Mar. 31, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_4. 16 See, e.g., Abigail Hauslohner, Nick Miroff & Matt Zapotosky, Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post, Mar. 12, 2020, available at https://www.washingtonpost.com/immigration/coronavirus-immigration-jails/2020/03/12/44b5e56a-646a-11ea845de35b0234b136_story.html; Josiah Rich, Scott Allen & Mavis Noah, We Must Release Prisoners to Lessen the Spread of Coronavirus, The Washington Post, Mar. 17 2020, available at https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spreadcoronavirus/.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 19 of 27
process requires the state to release the person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); accord Kansas, 521 U.S. at 363-64.
Continuing to detain Plaintiffs in conditions that impose a substantial risk of illness or death eviscerates any legitimate purpose for their detention. The Supreme Court has held hat immigration detention is permissible to ensure the immigrant’s participation in their removal proceedings, to prevent flight, and to otherwise protect the community. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Demore v. Kim, 538 U.S. 510, 528 (2003). For individuals who are at high risk for serious illness or death from COVID-19, protection from the virus is a matter of life or death, and no adequate measures are currently in place to mitigate against these risks. If detained persons are contagious, seriously ill, or otherwise dead, participation in legal proceedings will be medically or physically impossible, in violation of procedural due process, see infra Section I(C). And, as explained below, there is no credible argument that community safety requires their continued detention—instead, it compels the opposite.
C. Plaintiffs Are Likely To Prevail On Their Claim That Continued Detention Violates Procedural Due Process
When a governmental action limits a fundamental due process right to be free from detention, see Foucha, 504 U.S. at 80, Demore v. Kim, 538 U.S. 510, 561 (2003) (Souter, J., dissenting) (collecting cases), Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017), heightened scrutiny is applied. The action will be upheld only if the government shows it is necessary to promote a compelling governmental interest, Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Cooper v. Oklahoma, 517 U.S. 348, 363 (1996), and is implemented in a manner that is “carefully limited” and “narrowly focused.” Foucha, 504 U.S. at 81. The

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 20 of 27
fundamental substantive rights afforded to those in civil detention17 mandate “strong procedural protections.” Zadvydas v. Davis, 533 U.S. 678, 691 (2001); Demore v. Kim, 538 U.S. 510, 551 (Souter, J., dissenting) (“the substantive demands of due process necessarily go hand in hand with the procedural”). At a minimum, procedural due process requires the right to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Absent immediate injunctive relief, Defendants will provide either no procedural protections or wholly deficient ones. As explained, the government’s only legitimate interest in Plaintiffs’ continued detention—either to minimize flight risk pending removal proceedings or to prevent danger to the community, Zadvydas, 533 U.S. at 690—has been eviscerated by the pandemic because the likelihood of Plaintiffs’ severe illness or death renders a meaningful removal proceeding a nullity. See supra Factual Background Sec. II-V. At the same time, there are more “narrowly focused” means to ensure Plaintiffs’ appearance in legal proceedings, which do not subject them to the dangers of detention, including supervised or conditional release18 that would suffice to meet the government’s interest without subjecting Plaintiffs to severe danger.
Nor can Plaintiffs avail themselves of any meaningful procedural protections in an already-overburdened immigration court system, one that is ill-equipped to respond to the truly exigent crisis presented by COVID-19. There is substantial evidence that detained persons in facilities in the New Orleans ICE Field Office area of responsibility—under normal circumstances—have severe restrictions on access to counsel and the adjudicative process.19
17 Multiple courts have ruled that civilly detained individuals are afforded greater pretrial protections than their criminally-charged counterparts. See note 8, supra. 18 See, e.g., Immigration: Progress and Challenges in the Management of Immigration Courts and Alternatives to Detention Program, U.S. Government Accountability Office, Sep. 18, 2018, https://www.gao.gov/products/GAO18-701T; Alternatives To Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness, U.S. Government Accountability Office, (Nov. 13, 2014), https://www.gao.gov/products/GAO-15-26. 19 Plaintiffs are held in remote facilities, often upwards of five hours away from counsel and courts, Lopez ¶ 8; Scott Decl. ¶ 6, and access to attorney-client visits are sparse, if any, Lopez Decl. ¶ 4, Scott Decl. ¶¶ 8-9, 20. The

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 21 of 27
These restrictions have worsened; many judges postpone or simply fail to show up to their own hearings,20 rendering an already overburdened court system dysfunctional.21
This is a core procedural due process violation, Mathews v. Eldridge, 424 U.S. 319, 333
(1976), as other courts faced with similar coronavirus spread in their respective jurisdictions
have recognized. See Coronel v. Decker, CV 20-2472 (AJN) at *19-20 (S.D.N.Y Mar. 27, 2020);
Jovel v. Decker, No. CV 20-308 (GBD) (SN), 2020 U.S. Dist. LEXIS 52095, at *12-*16
(S.D.N.Y. Mar. 24, 2020). And, without immediate injunctive relief, Plaintiffs would have to
attempt to safeguard their own constitutional rights before a court charged to consider only flight
risk and dangerousness, not exigent threats to life and safety. See Zadvydas, 533 U.S. at 690; In
re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (setting forth nine non-health-related factors IJ is
to consider in setting bond). To safeguard Plaintiffs’ procedural due process rights, this Court
should order their outright release or a “narrowly focused” means to ensure future court
appearances, such as supervised or conditional release. See Reno v. Flores, 507 U.S. 292, 343
(1993) (Stevens, J. dissenting) (“a blanket rule that simply presumes that detention is more
appropriate than release to responsible adults is not narrowly focused on serving that interest.”).
III. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST TILTS SHARPLY IN FAVOR OF PLAINTIFFS’ RELEASE
already-sparse visitation in detention centers where Plaintiffs are held is diminishing, Scott Decl. ¶ 14, LR Decl. ¶¶ 6-10, Giardina Decl. ¶ 4, Trostle Decl. ¶¶ 7-8 and counsel to detained noncitizens in those facilities report having to provide their own ICE-mandated medically-protective equipment, Compl. ¶ 117, Giardina Decl. ¶ 6, or risk spreading the virus to other clients, staff, or their families. Lopez Decl. ¶ 6; Scott Decl. ¶ ¶ 13-14, 18; Axelrod Decl. ¶ 18. Meaningful attorney-client communications rarely occur due to a host of logistical nightmares—the current wait to videoconference with a client is upwards of one week [per Jeremy Jong]—and witness interviews, document collection, and hearing preparation routinely fail for lack of accessibility. Lopez Decl. ¶ ¶ 4-5; Scott Decl. ¶ ¶ 7-8, 10; Axelrod Decl. ¶ ¶ 7, 9-10; Giardina Decl. ¶¶ 3; Villareal Decl. ¶ 16; Trostle Decl. ¶ 8. 20 Scott Decl. ¶ 17; Huber Decl. ¶ 10. 21 Counsel for immigrants in removal proceedings consistently report a supremely dysfunctional immigration court structure, a system exacerbated by the COVID-19 pandemic, as practitioners describe a system struggling to manage caseloads, hold timely hearings, consider relevant evidence, or even have an Immigration Judge present. Lopez Decl. ¶ 6, 7; Scott Decl. ¶¶ 15-17, 20; Axelrod Decl. ¶¶ 8, 12; Rivera Decl. ¶¶ 14-16; Giardina Decl. ¶ 5; Fernandez Decl. ¶ 9; Trostle Decl. ¶¶ 7-9.

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 22 of 27
Where, as here, the Government is a party to the case, the third and fourth injunction factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655, 665 (W.D. Tex. 2019). As an initial matter, the public interest is served by the protection of constitutional rights. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Cohen v. Coahoma Co., 805 F. Supp. 398, 408 (N.D. Miss. 1992).
In addition, an injunction would also protect public health and safety, paramount considerations that weigh heavily in favor of an injunction. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 472 (5th Cir. 2017); see also Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”); Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013) (“the public interest in this case lies with safeguarding public health”); Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 WL 1049067, at *11 (E.D. Tex. Mar. 17, 2014) (citing cases); U.S. v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628, at *4 (D. Nev. Mar. 17, 2020) (identifying risk of individuals carrying coronavirus into jails and noting that “[t]he men and women incarcerated at Washoe County Detention Facility are a part of our community and all reasonable measures must be taken to protect their health and safety.”).
The balance of equities also strongly tilts in Plaintiffs’ favor. As the Central District of California just held in ordering the release of detained children, “the public’s interest in preventing outbreaks of COVID-19 among families and children in ICE or ORR custody that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems tips the balance of equities sharply in Plaintiffs’ favor.” Flores v. Barr, No. CV 85-4544-DMG (AGRx), ECF. 740 at 12 (C.D. Cal. Mar. 28, 2020). Because Plaintiffs

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 23 of 27
present no risk to community safety, the comparative burden to the government in releasing Plaintiffs is nominal. Release not only saves the government time and money, it actually reduces detention center density, decreasing the chances of COVID-transmission to both detained persons and staff, and avoids correspondingly escalating medical costs. Even if it did not tangibly benefit the government, the risk of catastrophic medical consequences would still tilt the equities in Plaintiffs’ favor. See Hernandez, 872 F.3d at 996 (“Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”). IV. IMMEDIATE RELEASE IS THE ONLY EFFECTIVE REMEDY FOR
PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER. The Court has ample authority under 28 U.S.C. § 2241and Rule 65 to issue the release of detained persons—a remedy that has been ordered by numerous courts across the country in recent days. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969). Habeas authorizes remedies for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying Supreme Court and appellate caselaw to conclude that “habeas corpus tests not only the fact but also the form of detention”). Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C 2243). That

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 24 of 27
authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris, 395 U.S. at 291.
Separately, under Rule 65 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue “orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). See also Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (affirming order releasing low-bond individuals in pretrial detention as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-26 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions.)
In the midst of this unprecedented public health crisis, numerous other courts considering the plight of detained individuals have similarly ordered release. See Xochihua-Jaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (sua sponte order of immediate release immigration detention due to rapidly escalating health crisis); In re Matter of Toledo Manrique, No. 19-MJ-71055-MAG-1 (TSH), 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“the risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”); United States of America v. Stephens, 2020 WL 1295155 at *2-3 (granting emergency motion for reconsideration of bail in light of COVID-19 pandemic); United States v. Raihan, No. 20-cr-68-BMC- JO, E.C.F. No. 20, Proc. At 10:12-19 (E.D.N.Y. Mar. 12, 2020) E.C.F. No. 20 ( “[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”); Manrique, 2020 WL 1307109 at *1 (74 year-old presents “risk that this vulnerable person will contract COVID-19 while in jail [which] is a special circumstance that warrants bail”).22
22 Courts maintain this authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). see

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 25 of 27
V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER.
Federal Rule of Civil Procedure 65(c) provides that “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, “Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and citation omitted). District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., Toussaint v. Rushen, 553 F. Supp. 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same here.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody.
also Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (where a case presents “extraordinary circumstances . . . that make the grant of bail necessary to make the habeas remedy effective,” federal courts have the inherent authority to release individuals from immigration detention pending final disposition of their claims); Leslie v. Holder, 865 F. Supp. 2d 627, 639 (M.D. Pa. 2012) (“extraordinary circumstances” warranting immigrant’s release on habeas); Sanchez v. Winfrey, No. CIV.A.SA04CA0293RFNN, 2004 WL 1118718, at *3 (W.D. Tex. Apr. 28, 2004) (same).

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 26 of 27

Dated: April 1, 2020 Respectfully submitted,

/s/ Matthew S. Vogel Matthew S. Vogel, La. Bar No. 35363 matt@nipnlg.org Sirine Shebaya* sirine@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876
Andrew Free* Andrew@ImmigrantCivilRights.com LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 844.321.3221 x.1
Jeremy Jong** jermjong@gmail.com 3527 Banks St, New Orleans, LA 70119 504.475.6728

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Lupe Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Aya Saed* asaed@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
William P. Quigley, La Bar No. 07769 Quigley77@gmail.com LOYOLA LAW CLINIC 7214 St. Charles Avenue New Orleans, LA 70118 504.710.3074

*pro hac vice application forthcoming **admission application forthcoming Counsel for Petitioners-Plaintiffs

Case 2:20-cv-01093 Document 2-1 Filed 04/01/20 Page 27 of 27

CERTIFICATE OF SERVICE I hereby certify that on April 1, 2020, I electronically filed the foregoing document and accompanying motion, exhibits, and proposed order with the Clerk of the Court using the CM/ECF system. I further certify that I spoke with AUSA Kevin Boitmann on the telephone and advised him of this filing on April 1, 2020, prior to its filing. In addition, I have emailed copies of these documents to AUSA Kevin Boitmann at the following email address at the U.S. Attorney’s Office for the Eastern District of Louisiana: kevin.boitmann@usdoj.gov

Dated: April 1, 2020

/s/ Matthew S. Vogel Matthew S. Vogel, La. Bar No. 35363 National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 Tel: (718) 419-5876 Fax: (617) 227-5495 matt@nipnlg.org

 
 Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

DADA, et al.,

Petitioners-Plaintiffs,

Civil Action No.: 2:20-cv-01093

v.

Section T(4)

WITTE, et al., Respondents-Defendants.

Judge Greg G. Guidry Magistrate Judge Karen Wells Roby
ORAL ARGUMENT REQUESTED

PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 2 of 18

I. THE OVERWHELMING RECORD EVIDENCE REVEALS THAT DEFENDANTS CANNOT THEMSELVES MITIGATE THE RISK OF COVID-19 SPREAD, PLACING PLAINTIFFS IN IMMINENT DANGER OF SERIOUS ILLNESS AND DEATH. A. The Escalating Crisis In the three days since this case was filed, the situation has rapidly deteriorated in the states
where Plaintiffs are detained. Confirmed COVID-19 cases in Louisiana increased from 5,237 to 12,496;1 in Alabama, from 1,000 to 1,550;2 and in Mississippi, from 1,073 to 1,455.3 COVID-19 has now killed five people at Oakdale Federal Correctional Institution, a federal prison within a two-hour drive from seven ICE detention facilities, including LaSalle ICE Processing Center and Winn Correctional Center.4 On March 31, 2020, just three days after the first death there, Oakdale stated that it was no longer testing persons at the facility and would instead presume COVID-19 infection because of the extent of transmission within the facility.5 Other state facilities across Louisiana are now reporting the spread of COVID-19 within their walls.6 Alabama has had confirmed cases in at least four of its jails.7 And Mississippi reports an outbreak in a longterm care

1 Coronavirus (COVID-19), Louisiana Department of Health, accessed Apr. 4, 2020, available at:

http://ldh.la.gov/coronavirus/

2 Alabama's COVID-19 Data and Surveillance Dashboard, Alabama Department of Public Health, accessed April 4,

2020,

available

at:

https://alpublichealth.maps.arcgis.com/apps/opsdashboard/index.html#/6d2771faa9da4a2786a509d82c8cf0f7

3 Coronavirus Disease 2019, Mississippi State Department of Health, accessed, Apr. 4, 2020, available atL

https://msdh.ms.gov/msdhsite/_static/14,0,420.html#caseTable

4 , Caroline Habetz Fifth inmate at Oakdale federal prison dies from COVID-19, KPLC TV, April 3, 2020, available

at https://www.kplctv.com/2020/04/03/fifth-inmate-oakdale-federal-prison-dies-covid-/

5 Nicholas Chrastil, Louisiana federal prison no longer testing symptomatic inmates for coronavirus due to ‘sustained

transmission’, The Lens, March 31, 2020, available at https://thelensnola.org/2020/03/31/louisiana-federal-prison-no-

longer-testing-symptomatic-inmates-for-coronavirus-due-to-sustained-transmission/

6 2 EBR inmates test positive for COVID-19; wing of prison quarantined, WAFB9, Mar. 30, 2020, available at

https://www.wafb.com/2020/03/31/ebr-inmate-tests-positive-covid-after-reported-drug-overdose-wing-prison-

quarantined/; Coronavirus behind bars in Louisiana: As 2 die in federal custody, 11 state inmates test positive, WDSU

News, Apr. 1, 2020, available at https://www.wdsu.com/article/coronavirus-behind-bars-in-louisiana-as-2-die-in-

federal-custody-11-state-inmates-test-positive/32011451#; Louisiana Office of Juvenile Justice reports almost a

dozen positive COVID-19 cases, KALB, Mar. 31, 2020, available at https://www.kalb.com/content/news/Office-of-

Juvenile-Justice-reports-almost-a-dozen-positive-COVID-19-cases--569254961.html

7 MCSO: Corrections officer, inmate tests positive for COVID-19, FOX10, Mar. 31, 2020, available atL

https://www.fox10tv.com/news/coronavirus/mcso-corrections-officer-inmate-tests-positive-for-covid-

19/article_d6dca764-7368-11ea-af94-a71eb864f88a.html; DOC inmates at two facilities now making masks for staff

and inmates, WSFA News, Apr. 1, 2020, available at: https://www.wsfa.com/2020/04/02/adoc-staton-correctional-

1

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 3 of 18
facility in Adams County.8 To fight the spread of COVID-19, Alabama governor Kay Ivey has facilitated the reduction of that state’s jail population.9 On April 3, 2020, Louisiana Supreme Court Chief Justice Bernette J. Johnson called for judges to reduce the jail population because “[a]n outbreak of COVID-19 in our jails would be potentially catastrophic for jail staff, the families of jail staff, and inmates.”10 ICE, whose poor health provision record Defendants do not dispute, see ECF No 2-1 at 8; ECF No 1 at 137, would not fare any better than these prison facilities.
Defendants’ claim that there are no confirmed cases of COVID-19 in the five detention facilities rings hollow given the extent of asymptomatic transmission and the absence of the widespread testing needed to contain an outbreak of this magnitude. See, e.g., ECF No. 2-21 ¶13. Defendants do not dispute that it is impossible for detention facilities to consistently screen and test for new, asymptomatic infection given the lack of availability of COVID-19 testing. See ECF 7-1. Without rigorous and widespread testing, there is simply no way of knowing how many COVID-19 cases there really are in the Louisiana, Mississippi, and Alabama detention facilities.
ICE is alone in minimizing the risk of harm, even as it escalates it. In fact, ICE has now confirmed that an individual detained at the Pine Prairie ICE Processing Center has tested positive for COVID-19.11 ICE knows this because ICE took custody of him knowing that he had already

staff-member-has-coronavirus/; Employee at federal prison in Talladega tests positive for coronavirus, WSFA News,

Apr. 2, 2020, available at: https://www.wsfa.com/2020/04/02/employee-federal-prison-talladega-tests-positive-

coronavirus/

8 Alabama's COVID-19 Data and Surveillance Dashboard, Alabama Department of Public Health, accessed April 4,

2020,

available

at:

https://alpublichealth.maps.arcgis.com/apps/opsdashboard/index.html#/6d2771faa9da4a2786a509d82c8cf0f7

9 Coronavirus: Order from Gov. Kay Ivey could ease inmate backlog in county jails, Montgomery Advertiser, Apr.

2, 2020, available at: https://www.montgomeryadvertiser.com/story/news/2020/04/02/coronavirus-order-gov-kay-

ivey-could-ease-inmate-backlog-county-jails/5116972002/

10 Letter from Louisiana Supreme Court Chief Justice Bernette J. Johnson to Louisiana District Judges, Apr. 2, 2020,

available at: https://www.lasc.org/COVID19/2020-04-02-LASC-ChiefLetterReCOVID-19andjailpopulation.pdf

11 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, accessed Apr. 4, 2020, available at:

https://www.ice.gov/coronavirus; ICE detainee tests positive for COVID-19 in Pine Prairie, Louisiana, The Daily

Advertiser, Apr. 3, 2020, available at : https://www.theadvertiser.com/story/news/american-

south/2020/04/03/coronavirus-ice-detainee-tests-positive-pine-prairie-louisiana/2946110001/

2

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 4 of 18
tested positive at Oakdale FCI, and deliberately transferred him to Pine Prairie, putting the rest of the population at risk.12 ICE introduced COVID-19 into Pine Prairie, and has not stopped transferring individuals between facilities.13 Such transfers mean that any quarantine is incomplete. They are also contrary to current CDC guidance, which calls on facilities to restrict transfers.14 Even if, as ICE states, the infected individual is in isolation, the lack of negative pressure isolation rooms means that any isolation is ineffective. See ECF 2-22 ¶10; ECF 2-21 ¶15.
B. Overwhelming Evidence Proves ICE Is Ill-Equipped to Control The Disease The central facts of this case remain unchallenged and undisputed. There is no dispute that Plaintiffs in this case are at risk for severe injury or even death if they contract COVID-19. ECF No. 1 ¶¶22-38; Meyer Supp. Decl. ¶12(f). There is no dispute that it is impossible for Plaintiffs to maintain the vigilant hygiene and social distancing necessary to keep themselves safe from infection. Meyer Suppl. Decl. ¶12. There is no dispute that the facilities in which Plaintiffs are detained are crowded, making social distancing impossible: many sleep in dorms that they share with over 50 other individuals, in beds—sometimes double- or triple-bunk beds—that are well under six feet apart, in some cases less than two feet apart.15 There is no dispute that bathrooms and dining halls are shared, and that, in one case, forty-four men share one shower. Asgari Decl., ¶18, ECF No. 2-4. While Defendants assert that these facilities are not at full capacity, Nelson Decl. ¶¶6, 9, 12, 15, 18, ECF. No. 7-1, this does not mean the facilities can implement the needed precautionary measures. See Meyer Supp. Decl. ¶ 12(a).
12 Id. 13 ECF No. 2-4 ¶¶ 13, 17; ECF No. 2-17 ¶ 7; ECF No. 2-8 ¶ 9; ECF No. 2-18 ¶ 18. 14 Center for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020, available at https://www.cdc.gov/coronavirus/2019- ncov/community/correction-detention/guidance-correctional-detention.html. 15 Katharina Obser Decl. ¶¶13-15; ECF No. 2-7 ¶¶15-16; ECF No. 2-11 ¶¶5, 7; ECF No. 2-15 ¶9; ECF No. 2-16 ¶¶89; ECF No. 2-6 ¶¶4-5; ECF No. 2-9 ¶8; ECF No. 2-8 ¶¶5, 8; ECF No. 2-14 ¶¶5, 7; ECF No. 2-18 ¶¶17-18; ECF No. 2-10 ¶¶5,7; ECF No. 2-5 ¶¶10-11; ECF No. 2-19 ¶7; ECF No. 2-4 ¶¶14,18; ECF No. 2-17 ¶¶5-6.
3

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 5 of 18
Moreover, the policies Defendants have described are outdated, ineffective, and are not being applied at the five detention centers. Meyer Supp. Decl. ¶¶11-12; see ECF No. 7-1. Apart from the current numbers of detained individuals, Defendants’ declarant offers absolutely no facts specific to any of these facilities, and nowhere does he dispute that these policies are not being implemented at the five facilities. See generally ECF No. 7-1. Even if those policies were being implemented at the facilities, they are severely ineffective and outdated. The policies Defendants describe are based on CDC guidance dated March 11, 2020, but the CDC has since updated its guidance. On March 23, 2020—almost two weeks before Mr. Nelson executed his declaration— the CDC issued specific guidelines for detention centers, but ICE has not integrated that new guidance into their policies. Two weeks later, it is still “reviewing” the new guidance. ECF 7-1 ¶.
Not only are the general policies that Mr. Nelson describes outdated, they are entirely inadequate. As Dr. Meyer, a medical doctor and expert epidemiologist, explains:
The updated [CDC] guidance does not separate individuals into risk categories but instead provides clear recommendations on how to implement evidence-based infection prevention and control strategies in detention settings. These recommendations are extremely detailed, whereas the policies cited in Mr. Nelson's declaration are vague and, per the plaintiffs’ declarations, being inconsistently implemented. As a result, detainees in these facilities remain at high risk of COVID-19 exposure and infection. Supp. Meyer Decl. ¶11. Dr. Meyer goes on to conclude that “it is my professional judgment that individuals placed in one of these 5 facilities are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.” Id. ¶13. Dr. Meyer accordingly recommends that “individuals who can safely and appropriately remain in the community not be placed in one of these 5 facilities at this time.” Id. ¶14, Similarly, Dr. Bazzano concluded that Defendants’ COVID-19 policy “will not
4

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 6 of 18
be sufficient to protect Plaintiffs, that few emergency resources existed to provide care when they fell ill, and that Plaintiffs were at high risk for multiorgan failure and death.” ECF 2-21 ¶¶15, 18. Defendants provide no contrary evidence other than the blanket assertions of an ICE official with no medical training. In fact, Defendants’ plan is based on a 2014 pandemic readiness plan longago criticized as inadequate by DHS’s own Office of the Inspector General.16
Defendants claim that they will transfer Plaintiffs to regional hospitals if they become ill, but the explosion of COVID-19 combined with already under-resourced rural medical systems have led to severe shortages of intensive care unit beds and ventilators in the very hospitals expected to provide life-saving care when, inevitably, Plaintiffs fall ill.17 Instead of protecting Plaintiffs, guards, and the surrounding community, ICE’s “plan” puts them at grave risk of contracting COVID-19.
Moreover, Defendants fail to even follow their own inadequate policies at the five detention centers. Nowhere do Defendants explain or rebut Plaintiffs’ observations that the staff at these detention centers do not wear masks or gloves,18 or that Plaintiffs do not have adequate access to soap or hand sanitizer.19 Defendants do not deny Plaintiffs’ observations that individuals who are ill, including those presenting symptoms consistent with COVID-19, are not tested or given adequate medical care.20 These practices run counter to current CDC guidance for detention
16 Justin Rohrlich, US immigration authorities were unprepared to contain a cross-border pandemic, Quartz, March 18, 2020, available at https://qz.com/1820007/us-border-agencies-were-unprepared-to-contain-coronavirus/ 17 As pandemic rages, U.S. immigrants detained in areas with few hospitals, Reuters, Apr. 3, 2020, available at: https://www.reuters.com/article/us-health-coronavirus-usa-detention-insi/as-pandemic-rages-us-immigrantsdetained-in-areas-with-few-hospitals-idUSKBN21L1E4. 18 ECF No. 2-7 ¶¶15-16; ECF No. 2-11¶ 5; ECF No. 2-15 ¶9; ECF No. 2-16 ¶8; ECF No. 2-6 ¶5; ECF No. 2-8 ¶5; ECF No. 2-14 ¶5; ECF No. 2-18 ¶17; ECF No. 2-10 ¶7; ECF No. 2-5 ¶11; ECF No. 2-13 ¶8; ECF No. 2-4 ¶14; ECF No. 2-17 ¶5. 19 ECF No. 2-17 ¶5; ECF No. 2-11 ¶5; ECF No. 2-14 ¶9; ECF No. 2-7 ¶16; ECF. No. 2-4 ¶19. 20 ECF. No. 2-25 ¶4; ECF No. 2-27 ¶6,8,9; ECF No. 2-11 ¶ 5; ECF No. 2-17 ¶ 7; ECF No. 2-15 ¶ 7; ECF No. 2-8 ¶ 9; ECF No. 2-14 ¶ 4; ECF No. 2-14 ¶ 10; ECF No. 2-7 ¶ 15.
5

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 7 of 18
facilities, which, for example, recommended that facilities reassign bunks to provide six feet of space between individuals and limit group activity.21
While Defendants claim to be reviewing individuals on a case-by-case basis for release, Defendants nowhere explain what the timeline for such review is, whether Plaintiffs’ cases have been reviewed, and, if they have, why they are still in custody. Further, the criteria Defendants are using to conduct such reviews are not consistent with CDC guidelines. Dr. Meyer notes that they are “incomplete” and fail to include CDC-recognized “high-risk conditions [that] include age >65, chronic lung disease (including asthma), chronic liver disease, chronic kidney disease, suppressed immune system, pregnancy, diabetes, and cardiovascular disease (including hypertension and heart disease).” Meyer Supp. Decl. ¶12(f). She therefore concludes that “[t]here is thus a high likelihood that many other high-risk individuals remain in ICE detention.” Id.
Further, Defendants nowhere address how ICE will be able to dramatically expand medical facilities and staffing to conduct the necessary daily monitoring of guards, staff, officials, contractors, vendors, other care and service providers, and newly detained individuals. Given asymptomatic transmission, to effectively screen staff, the facilities would have to conduct frequent tests, taken multiple times a day as staff and the newly detained enter the facility. See ECF No. 2-21 ¶13. Defendants do not claim to be implementing such testing, nor could they, given the widespread shortage of testing kits. See ECF 7-1. II. THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ HABEAS CLAIMS AND
AUTHORITY TO ORDER RELEASE. A. The ICE Field Office Director Who Has Custody Over Petitioners Is the Proper
Respondent and this Court has Jurisdiction.
21 Center for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020, available at https://www.cdc.gov/coronavirus/2019- ncov/community/correction-detention/guidance-correctional-detention.html.
6

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 8 of 18
In Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), the Supreme Court articulated the “immediate custodian rule” establishing that “the proper respondent is the warden of the facility where the prisoner is being held,” rather than “the Attorney General or some other remote supervisory official.” Contrary to Defendants’ assertions, Padilla’s “immediate custodian rule,” was not absolute, but instead a “default rule,” which necessarily has exceptions, id. at 435-36, and the Court expressly “decline[d] to resolve” whether this rule should apply in immigration detention. Id. at 435 n. 8. In any case, Plaintiffs have not sued any “remote supervisory official,” so the question before this court is not whether the default rule applies, but rather whether the proper respondent is the person who has the authority to release, transfer, and control each Plaintiff, that is, the ICE Field Office Director rather than the warden of each facility.
The Fifth Circuit has not addressed the specific question presented here, whether the default rule applies in immigration-related detention where the Plaintiffs are housed at facilities contracted by ICE. But district courts within the Fifth Circuit have not only found the “proper respondent” in habeas petitions brought by those detained by ICE to be the ICE Field Office Director, but also have declined to dismiss even high-level supervisors such as Secretary of Homeland Security, the Attorney General, and the Director of ICE. See Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917, 927 (W.D. Tex. 2017) (declining to dismiss not only Field Office Director but also supervisory respondents because Padilla “explicitly declined to address this precise issue”); Fuentes-De Canjura v. McAleenan, No. EP-19-CV-00149-DCG, 2019 WL 4739411, at *3 (W.D. Tex. Sept. 26, 2019) (same).
Other courts have likewise explained, “the proper respondent is not the warden of the facility—a ‘non-federal actor who is ‘poorly situation to defend federal interests,’—but is instead ‘the federal official most directly responsible for overseeing the contract facility.’” Masingene v.
7

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 9 of 18
Martin, 19-CV-24693, 2020 WL 465587, at *2 (S.D. Fla. Jan. 27, 2020) (citing Rodriguez Sanchez v. Decker, No. 18-CV-8798 (AJN), 2019 WL 3840977, at *2-3 (S.D.N.Y. Aug. 15, 2019) (citation omitted); accord Saravia v. Sessions, 280 F. Supp. 3d 1168, 1186 (N.D. Cal. 2017) (“the federal official with most immediate control over the facility holding the petitioner—that is, the federal official tasked with ensuring that Yolo County complies with the requirements of its contract with ORR—is the proper respondent.”).
Here, the wardens of each facility do not have independent authority to release any Plaintiff from detention and cannot move, transfer, or release Plaintiffs without express directive from the New Orleans ICE Field Office, which is headed by Respondent-Defendant Dianne Witte, the Field Office Director. It is the Enforcement and Removal Office of New Orleans that has custody over Petitioner-Plaintiffs, and in many cases is the same office who took them into custody. (Nelson Decl. ¶¶ 20-21 23-27). ICE is responsible for ensuring that each facility complies with their detention standards, and Defendants acknowledge that ICE has control over some day-to-day operations within their contract facilities. (Nelsen Decl. ¶ 44). In arguing that the immediate custodian rule should apply in the immigration context, Defendants cite to three cases, all of which pre-date Padilla, do not discuss the immediate custodian rule, and fail to address the specific facts presented here: whether jurisdiction lies in the only venue appropriate for the respondent and the only court where a remedy can be granted.
In Padilla, the appropriate respondent was the one who had the power to “produce the prisoner’s body” to the court, 542 U.S. at 435; here that is ICE, because “the wardens have no literal power to produce Plaintiffs.” Calderon v. Sessions, 330 F. Supp. 3d 944, 952 (S.D.N.Y 2018). Deviating from the default rule here will not lead to forum shopping, inconvenience, expense, or the possibility that other judges would release “distantly removed” petitioners. Defs’
8

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 10 of 18
Br. 4-5 As Field Office Director for ERO New Orleans, Defendant Witte is the only person who
can grant release. She is thus the proper respondent, and this Court has jurisdiction.
B. The Court Has Jurisdiction Over the Habeas Claims Because the Only Remedy Sought is Release, and it Independently Has Jurisdiction Under Rule 65.
Defendants fundamentally misunderstand the nature of Plaintiffs’ habeas claims under §
2241. Even if Defendants’ asserted distinction between challenges in habeas to the “fact or
duration of detention” and challenges to conditions of detention were actually observed in the Fifth Circuit – a distinction the most recent analysis by the Fifth Circuit rejects22 – Plaintiffs’ challenge
sits at the core of the writ. Plaintiffs do not seek judicial intervention in order to improve their
conditions of confinement of the sort of attempted by habeas petitioners in every case Defendants rely upon, see Defs’ Br. 9-10.23 Indeed, the very premise of the habeas petition – supported by
uncontroverted record evidence – is that the conditions producing inevitable and irreparable harm
in these circumstances cannot be remediated by any judicial order, which therefore renders the fact
of their continued detention unlawful under due process. The petition does, therefore, seek “relief
from unlawful imprisonment or custody.” Defs’ Br. 9.. Unlike in Carson v. Johnson, 112 F.3d
818, 820-21 (5th Cir. 1997), here, Plaintiffs do seek “accelerated release,” not an order improving
conditions, making habeas the proper vehicle. See Poree, 866 F.3d at 244 (petition seeking transfer less restrictive facility “properly sounds in habeas.”).24
22 In Poree v. Collins, 866 F.3d 235 (5th Cir. 2017), cited by Defendants to support the asserted distinction, the court emphasized that “the Supreme Court has not foreclosed” habeas challenges for conditions claims, id. at 244, observed that Fifth Circuit caselaw expressly rejects the distinction, id. (citing Coleman v. Dretke, 409 F.3d 665, 670 (5th Cir. 2005), and then “declin[ed] to address whether habeas is available only for fact or duration claims,” id. 23 Schipke v. Van Buren, 239 F. App’x 85, 86 (5th Cir. 2007) (rejecting habeas where petitioner sought an order “modifying the conditions of her detention.”); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) rejecting habeas petition seeking access to law library and better medical treatment); Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. Oct. 15, 2019) (“providing relief on [the habeas claim] would not require the petitioners’ release . . . only improving conditions of confinement.”). And unlike Petitioners in these cases, a civil rights challenge under §1983 is not available in this case, making habeas the only appropriate remedy. 24 Petitioners respectfully submit this Court should not follow Sacal-Micha v. Longoria, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020), relied upon by Defendants. First, it does not appear that the court there had the benefit of fulsome briefing on the operation of the asserted distinction between fact and conditions claims in the Fifth Circuit, or a proper
9

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 11 of 18
Habeas is a flexible, equitable remedy, Harris v. Nelson, 394 U.S. 286, 292 (1969), that offers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C § 2243). That authority includes orders to release, Boumediene, 553 U.S. 723, 779 (2008), so as to “insure that miscarriages of justice . . . are surfaced and corrected.” Harris, 395 U.S. at 291. Independent of habeas, this Court may order release under its inherent equitable power to remedy conditions endangering the health and safety of people in custody. See Brown v. Plata, 563 U.S. 493 (2011).
C. Plaintiffs’ Substantial Risk Of Severe Illness And Death Constitutes A Legally Cognizable Injury Which Is Redressable By The Court.
Defendants’ characterization of Plaintiffs’ injury, short of actually contracting a lethal disease, as “conjectural,” is incorrect as a matter of law and fact. As Defendants concede, Plaintiffs need only show a “substantial risk” of injury, Defs’ Br. 7 (citing Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019); they need not show the actual onset of the injury, see Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”); M.D. v. Perry, 294 F.R.D. 7, 34 (S.D. Tex. 2013) (“plaintiff does not need to wait until actually harmed, until the risk of harm is realized”); Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (prisoner “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.”). Judges across the country, like Judge John E. Jones III in central Pennsylvania, have forcefully rejected Defendants’
explanation about why, as in this case, the claims do not seek improved conditions, but release because of due process violations. Second, there was not substantial evidence before that court that conditions in the relevant Texas facility, considered nearly ten days ago in rapidly changing environment; here, the undisputed evidence demonstrates by contrast, that circumstances in Louisiana detention facilities are dire and cannot be improved – that is, habeas release is the only remedy.
10

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 12 of 18

argument. Thakker v. Doll, 1:20-cv-480-JEJ at 5-6 (M.D. Pa. March 31, 2020) (plaintiffs need not wait “until the pandemic erupts in our prisons.”) (attached as Vogel Decl. Exhibit 4).25
Defendants claim that any harm is speculative because ICE has “established” that there are no COVID-19 cases in Plaintiffs’ facilities. Defs’ Br. 8. This is willful, dangerous blindness. ICE recorded no cases only because it has not tested the vast majority of detained persons, even those with obvious symptoms. This is why Plaintiffs’ face a substantial – indeed, inevitable – risk of imminent harm. The COVID-19 pandemic is moving rapidly and lethally across Louisiana and its neighboring states. Infection and mortality rate in Louisiana and its neighboring states has been much higher than those of other regions, including at least five reported deaths in prison and detention facilities.26 Given the evidence demonstrating cramped and unsanitary conditions, the impossibility of complying with CDC guidance, as well as the daily entry of staff and guards from the community, and the continued influx and transfer of dozens of new and infected people into detention facilities, it is certain that the disease will become widespread in all detention centers, leaving those with preexisting conditions to be at a particularly high risk of severe illness or death. Bazzano Decl. ¶ 14; Asgari Decl. ¶¶ 13, 17.27

25 Days after Judge Jones properly rejected ICE’s contention that the habeas petitioners in Thakker lacked standing

because their injuries were speculative absent a confirmed COVID-19 case at York, ICE confirmed at least one

positive case of COVID-19 at that facility. “ICE Detainee in York County Prison tests positive for coronavirus,” York

Daily Record (Apr. 4, 2020) available at https://tinyurl.com/YorkCov19 (last visited Apr. 4, 2020).

26 Louisiana Department of Health, Coronavirus (COVID-19) (March 29, 2020), http://ldh.la.gov/coronavirus/;

Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (March 29, 2020),

https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease

2019

(COVID-19),

Alabama

Public

Health

(March

29,

2020),

http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html. Caroline Habetz, Fifth Inmate at Oakdale

Federal Prison Dies from Covid-19, https://www.kplctv.com/2020/04/03/fifth-inmate-oakdale-federal-prison-dies-

covid-/. Indeed, very courthouse in which this case is lodged is closed because of this obvious risk, and the Chief

Justice of the Louisiana Supreme Court, in offering guidance on reducing jail population recognized the substantial

risk of “catastrophic for jail staff, the families of jail staff, and inmates.” See supra Section I(A).

27 Defendants’ redressability argument – which amounts to a nihilistic claim that, because anyone can die at any time,

a court can do nothing to mitigate a clearly higher risk of harm – cannot be taken seriously. The consensus of public

health opinion is that ICE detention facilities are ticking health timebombs. By contrast, all Petitioners attest that they

have a safe home to shelter in, in which they can quarantine and remain safe.

11

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 13 of 18
III. INDEPENDENT OF HABEAS, PLAINTIFFS MEET THE TRO STANDARDS. A. Plaintiffs Are Likely to Succeed on Their Due Process Claims. Defendants all but ignore the Bell v. Wolfish inquiry, which applies when a “detainee
attacks general conditions, practices, rules, or restrictions” of their detention. Hare v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996). This standard asks whether the relevant conditions or practices that Plaintiffs challenge “are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to” that purpose. Bell, 441 U.S. 520, 561 (1979). In a footnote, Defendants cursorily argue that they have a legitimate interest in detention to ensure that noncitizens do not abscond from their removal proceedings. Defs’ Br. 13 n. 9. But the relevant inquiry is not whether detention of Plaintiffs in usual circumstances is excessive: these are not usual circumstances. Thakker, et. al. v. Doll, et. al., No 1:20-cv-00480JEJ at 24 (M.D. Pa. Mar. 31, 2020) (“we must acknowledge that the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly.”).
The relevant inquiry is whether the unsanitary conditions in immigration detention, where social distancing is impossible, and which expose Plaintiffs to the substantial risk of contracting COVID-19 and suffering serious illness or death is excessive in relation to any purported governmental interest.28 See id. at 21. Detention and the inevitable risk of serious harm in these circumstances, for civil detainees, is plainly excessive. As Judge Jones III noted in Thakker:
ICE has a plethora of means other than physical detention at their disposal by which they may monitor civil detainees and ensure that they are present at removal
28 In Shepherd and Duval, which fully support Plaintiffs position, the inquiry was not whether pretrial detention by itself served a legitimate government purpose, but “whether legitimate governmental purpose was served by the allowance of the MRSA infection to be present in the […] jail,” Duvall v. Dallas Cty., Tex., 631 F.3d 203, 207 (5th Cir. 2011), or whether “the inadequate medical conditions of which Shepherd complains were reasonably related to a legitimate government purpose.” Shepherd v. Dallas Cty., Tex., No. CIV.A. 305CV1442-D, 2008 WL 656889, at *7 (N.D. Tex. Mar. 6, 2008).
12

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 14 of 18
proceedings, including remote monitoring and routine check-ins. Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community. We cannot see the rational basis of such a risk. Id. at 22. Further, “the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.” Id. at 23. Defendants also fail under the deliberate indifference standard for “liability for episodic acts or omissions” because they cannot show that they have taken any effective steps to address the substantial risk of serious harm or death to Plaintiffs. See Hare 74 F.3d at 647-8. Defendants concede actual knowledge that COVID-19 is a deadly pandemic that puts Plaintiffs at substantial risk of serious harm. Defs’ Br. 12. This risk is even greater now, as there has been a confirmed case of COVID-19 in Pine Prairie and the Alexandria Staging Facility.29 Defendants state in vague, conclusory terms, that “ICE has shown that it has taken appropriate steps” to limit transmission, identify those exposed, and “timely treat those who are ill.” Defs’ Br. 12-13 (citing to Nelson Decl. ¶¶ 38-45). But Plaintiffs’ firsthand accounts of unsanitary, crowded conditions inside and the abject failure to test or comply with applicable CDC guidance, undermines Defendants’ conclusory statement. See supra I(B). Additionally, evidence submitted by Plaintiffs demonstrates that immigration detention centers are incapable of mitigating the risks posed by COVID-19, and that the steps cited by Defendants are patently ineffective. See id. Moreover, continued detention during the COVID-19 pandemic actually undermines the purported purpose of immigration detention. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). If Plaintiffs are released, ICE can ensure that they attend immigration proceedings through supervised or conditional release. In contrast, the risk of illness or death from continued detention jeopardizes Plaintiffs’ ability to attend or meaningfully participate in immigration proceedings.
29 ICE Guidance on COVID-19: Confirmed Cases (updated April 3, 2020), available at www.ice.gov/coronavirus.
13

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 15 of 18

Defendants also fail to address Plaintiffs’ alternate ground for relief: that continued detention violates Plaintiffs’ procedural due process rights. Cite Brief
B. Absent an Injunction Plaintiffs Will Suffer Irreparable Harm, and the Public Interest in Public Health and Balance of Equities Favors Release The Fifth Circuit has held that “it is not necessary to demonstrate that harm is inevitable,”
only that there is a “significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). All Plaintiffs meet this standard.
Both medical experts and the CDC establish that individuals in confined spaces such as jails and detention centers are at grave risk of injury. Meyer Decl. ¶¶ 7-17; Bazzano Decl. ¶¶ 1516; see Coronel v. Decker, 20-cv-2472 (AJN) __ WL __ at *8 (S.D.N.Y Mar. 27, 2020) (collecting cases). It is beyond dispute that for medically vulnerable individuals such as Plaintiffs, the risk is heightened. See Meyer Supp. Decl. ¶ 40 (“individuals placed in one of these 5 facilities are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected.”). The injury is truly imminent—if Defendants have not acknowledged that COVID-19 has already reached two of Plaintiffs’ detention centers, its onset into the Pine Prairie Detention Center and the Alexandria Staging Facility portends its imminent arrival. Lastly, it is clear that courts cannot remediate this type of harm—not only death, but even the risk of death—with money damages. Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004). “[A] remedy for unsafe conditions need not await a tragic event.” Thakker, et. al. v. Doll, et. al., No 1:20-cv-00480-JEJ *6 (M.D. Pa. Mar. 31, 2020).30

30

Plaintiffs also demonstrate irreparable harm through a showing that Defendants have violated their

constitutional rights, Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012), to

substantive and procedural due process, the latter of which Defendants do not challenge.

14

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 16 of 18
Plaintiffs’ release would also serve the public’s interest in ensuring public health and safety. See Dkt. 2-1 at 22 (citing cases). This includes consideration of individuals in immigration detention centers. Meyer Supp. Decl. ¶ 45 (“Health in jails and prisons is community health.”). And despite Defendants’ assertion that this Court allow the “orderly medical processes and protocols implemented by government professionals,” to run its course, the overwhelming evidence indicates that ICE and the New Orleans Field Office: (a) still have no plan to release vulnerable individuals who are currently in custody, (b) have not and cannot engage in CDC requirements to limit infection; and (c) have not stopped transferring and bringing new people into the detention centers under the New Orleans Field Office’s supervision.
Lastly, this Court should ignore Defendants’ panicked conjecture that a ruling would open every jailhouse door. Defs’ Br. 14. Plaintiffs seek limited and narrow relief petitioning for only the release of these seventeen vulnerable individuals before the court, a factor that cannot tilt in Defendants’ favor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009).
CONCLUSION For the foregoing reasons, and to protect their lives and public health, the Court should order release of Plaintiffs.

Dated: April 4, 2020 New Orleans, Louisiana

Respectfully submitted,
/s/ Matthew S. Vogel Matthew S. Vogel, La. Bar No. 35363 matt@nipnlg.org Sirine Shebaya* sirine@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200
15

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 17 of 18
Washington, DC 20007 718.419.5876
William P. Quigley, La Bar No. 07769 Quigley77@gmail.com LOYOLA LAW CLINIC 7214 St. Charles Avenue New Orleans, LA 70118 504.710.3074
Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTSS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Andrew Free* Andrew@ImmigrantCivilRights.com LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 844.321.3221 x.1
Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728
Counsel for Petitioner-Plaintiffs
*pro hac vice applications forthcoming
16

Case 2:20-cv-01093-GGG-KWR Document 9 Filed 04/04/20 Page 18 of 18

CERTIFICATE OF SERVICE I hereby certify that on April 4, 2020, I electronically filed the foregoing document and accompanying proposed order with the Clerk of the Court using the CM/ECF system. I further certify that, in an abundance of caution, I emailed copies of these documents to AUSA Peter Mansfield at the following email address at the U.S. Attorney’s Office for the Eastern District of Louisiana: peter.mansfield@usdoj.gov

Dated: April 4, 2020

/s/ Matthew S. Vogel Matthew S. Vogel, La. Bar No. 35363 National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 Tel: (718) 419-5876 Fax: (617) 227-5495 matt@nipnlg.org

17

 
 Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

TATALU HELE DADA, et al.
VERSUS
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement, et al.

CIVIL ACTION NO: 20-1093 SECTION: T (4)

ORDER
Petitioners-Plaintiffs, detainees at various facilities,1 have filed through counsel a Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief (R.
Doc. 1), and a Motion for a Temporary Restraining Order (“TRO”) (R. Doc. 2). The Federal
Defendants, United States Immigration and Customs Enforcement (“ICE”), Dianne Witte, in her
official capacity as Interim New Orleans Field Office Director, and Matthew T. Albence, in his
official capacity as Deputy Director and Senior Official Performing the Duties of the Director of
United States Immigration and Customs Enforcement, have filed a response opposing Plaintiffs’
emergency motion for a temporary restraining order. R. Doc. 7.2 At the direction of the Court (R.
1 Adams County Correctional Center, Natchez, MS; Etowah County Detention Center, Gadsden, AL; Richwood Correctional Center, Richwood, LA; LaSalle ICE Detention Center, Jena, LA; and Winn Correctional Center, Winnfield, LA. None of these facilities lies within the territorial jurisdiction of the Eastern District of Louisiana.
2 The Wardens of the various detention facilities have also been made defendants in this matter: Shawn Gillis, in his official capacity as Warden, Adams County Correctional Center; Jonathan Horton, in his official capacity as Sheriff of Etowah County, Keith Peek, in his official capacity as Chief Deputy, Etowah County Detention Center; Steven Debellevue, in his official capacity as
1

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 2 of 7
Doc. 6), Plaintiffs have filed a reply in support of their motion for a temporary restraining order. R. Doc. 9. For the reasons stated below, the Court finds it lacks jurisdiction to entertain Plaintiffs’ Petition, Complaint for Injunctive Relief, and Motion for TRO. Accordingly, the Petition and Complaint are dismissed without prejudice. FACTS and PROCEDURAL POSTURE
Plaintiffs are in various stages of immigration proceedings, awaiting a scheduled hearing before an Immigration Judge, the outcome of a pending appeal before the Board of Immigration Appeals, or deportation. R. Doc. 1; R. Doc. 7-1. At least two are under consideration for release on parole or under an order of supervision. R. Doc. 7-1, pp. 8 and 11. In their Petition, Complaint for Injunctive Relief, and Motion for TRO, Plaintiffs seek an order from this Court directing Defendants to release the Plaintiffs immediately on their own recognizance pending disposition of their immigration proceedings. In the alternative, Plaintiffs request the Court issue an order requiring Defendants to release them from detention and place them in community-based alternatives to detention, subject to reasonable and appropriate conditions. Plaintiffs assert they suffer various medical conditions and co-morbidities that place them at imminent risk of severe illness or death were they to develop COVID-19. They allege six claims for alleged violations of: substantive and procedural due process rights; unlawful detention under the federal habeas statute, 28 U.S.C. § 2241; Fifth Amendment right to counsel and a fair hearing; the Administrative Procedure Act; and the Rehabilitation Act. R. Doc. 1. Ultimately, Plaintiffs contend their continued
Warden, Richwood Correctional Center; David Cole, in his official capacity as Warden, LaSalle ICE Processing Center; and Keith Deville, in his official capacity as Warden, Winn Correctional Center. R. Doc. 1.
2

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 3 of 7
detention is unlawful under due process because their health cannot be protected in or by the facilities in which they are detained. Accordingly, they seek, not merely a change in the conditions of their confinement, but immediate release from confinement, either on their own recognizance or to community-based alternatives with conditions. See R. Doc. 9, p. 9. LAW and ANALYSIS
Before reaching the merits of Plaintiffs’ Motion for TRO, the Court must determine as a threshold matter whether it has proper jurisdiction to entertain Plaintiffs’ habeas petition pursuant to 28 U.S.C. § 2241(a). In general, “[t]he only district that may consider a habeas corpus challenge to present physical confinement pursuant to § 2241 is the district court in which the prisoner is confined.” United States v. McPhearson, 451 F. App’x 384, 387 (5th Cir. 2011) (citing Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004); Lee v. Wetzel, 244 F.3d 370, 375 n. 5 (5th Cir. 2001)). Because none of the seventeen plaintiffs is confined within the territorial jurisdiction of this Court, the parties were specifically requested to brief the jurisdictional issue. R. Doc. 6.
The Federal Defendants maintain that the warden for each facility in which these Plaintiffs are detained, rather than ICE through its New Orleans Field Office, is the “immediate custodian” for purposes of determining the district court’s jurisdiction over the § 2241 claims of the individual plaintiffs. R. Doc. 7, pp. 4-5 (citing Padilla, 542 U.S. at 442-43). The Federal Defendants argue the Supreme Court in Padilla rejected the “legal reality of control” standard and held that legal control over the detained individual does not determine the proper respondent in a habeas petition that challenges present physical confinement. Id. at 4 and n.4 (citing Padilla, 542 U.S. at 437-39)). The Federal Defendants point out that the Fifth Circuit has consistently applied the “territorial
3

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 4 of 7
jurisdiction” rule to immigrant detainees. R. Doc. 7, p. 5 (citing Zurawsky v. Ashcroft, No. 03-439, 2003 WL 21088092 (E.D. La. May 8, 2003); Santos v. U.S.I.N.S., No. 98-2247, 1998 WL 774175 (E.D. La. Oct. 30, 1998); McFarlane v. I.N.S., No. 92-709, 1992 WL 161135 (E.D. La. June 23, 1992); Nguyen v. I.N.S., No. 92-1116, 1992 WL 73343 (E.D. La. Apr. 2, 1992)). Thus, the Federal Defendants assert that the territorial jurisdiction rule should be applied in this case and that Plaintiffs’ Petition and Complaint be dismissed without prejudice, rather than remanded to another district court. R. Doc. 7, p. 6 and n. 6.3
In their reply brief, Plaintiffs acknowledge the Supreme Court in Padilla articulated the “immediate custodian rule” establishing that “the proper respondent is the warden of the facility where the prisoner is being held,” rather than “the Attorney General or some other remote supervisory official.” R. Doc. 9, p. 7 (citing Padilla, 542 U.S. at 435). However, Plaintiffs contend there are exceptions to this “default rule,” and that the Supreme Court specifically declined to resolve whether the rule should apply in immigration detention matters. Id. (citing Padilla, 542 U.S. at 435 n. 8). Thus, Plaintiffs argue an exception to the “immediate custodian rule” should be recognized in immigration detention cases. Although the Fifth Circuit has yet to address the issue of whether the “immediate custodian rule” applies in immigration-related detention where the plaintiffs are housed at facilities contracted by ICE, Plaintiffs here note that district courts have not only found the “proper respondent” to be the ICE Field Office Director in habeas petitions
3 The Federal Defendants note that 11 of the 17 Plaintiffs are confined within the territorial jurisdiction of the Western District of Louisiana, while the remainder are confined within the territorial jurisdictions of the Southern District of Mississippi and the Northern District of Alabama. R. Doc. 7, p. 6 n. 6.
4

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 5 of 7
brought by those detained by ICE, but courts have also declined to dismiss even high-level supervisors, such as the Secretary of Homeland Security, the Attorney General, and the Director of ICE. R. Doc. 9, p. 7 (citing Gutierrez-Soto v. Sessions, 317 F.Supp.3d 917, 927 (W.D. Tex. 2017); Fuentes-De Canjura v. McAleenan, No. 19-149, 2019 WL 4739411, at *3 (W.D. Tex. Sept. 26, 2019)).4
In asserting the New Orleans Field Office of ICE is in fact the “immediate custodian” for purposes of jurisdiction in this immigrant detention case, Plaintiffs argue that the wardens of each facility do not have the independent authority to release any Plaintiff from detention, nor can they move, transfer, or release Plaintiffs without an express directive from the New Orleans Field Office. R. Doc. 9, p. 8. Plaintiffs point to the Declaration of the Assistant Director of the Enforcement and Removal Office (“EROS”) of the New Orleans Field Office of ICE, R. Doc. 71, to demonstrate that it is EROS that has custody over Plaintiffs, that ICE ensures the facilities comply with its detention standards, and that ICE has control over some day-to-day operations within their contract facilities. R. Doc. 9, p. 8. Plaintiffs contend the cases cited by the Federal Defendants pre-date Padilla. In applying Padilla to the facts of this case, Plaintiffs argue that ICE is the appropriate respondent because it has the power to “produce the prisoner’s body” to the court, quoting Padilla, 542 U.S. at 435, rather than the wardens, who have no power to do so (citing Calderon v. Sessions, 330 F.Supp.3d 944, 952 (S.D.N.Y 2018)). Id.
“Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the
4 In both cases cited by Plaintiffs, the petitioners were detainees confined within the territorial jurisdiction of the district court. Hence, the courts therein were not confronted with the precise issue presented here.
5

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 6 of 7
district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). Thus § 2241(a) confers upon district courts “the authority to grant writs of habeas corpus ‘within their respective jurisdictions.’” See Lee v. Wetzel, 244 F.3d at 373. There is no doubt that a district court has jurisdiction to entertain an alien’s habeas petition under § 2241 if that alien is detained within that court’s district. See Fuentes-De Canjura, supra, at *3 (citing Lee v. Wetzel, 244 F.3d at 374-75).
Plaintiffs are correct that the Fifth Circuit has not yet addressed the precise issue presented here. Consequently, this Court declines to guess whether that court might recognize an exception in immigrant detainee cases to the general rule that “the proper respondent is the warden of the facility where the prisoner is being held.” Thus, the Court declines to find that the New Orleans Field Office of ICE is the “immediate custodian” of each plaintiff in this case for the purposes of exercising jurisdiction over the § 2241 claims asserted by Plaintiffs in their Petition and Complaint.
Plaintiffs frame the issue as “whether jurisdiction lies in the only venue appropriate for the respondent and the only court where a remedy can be granted.” R. Doc. 8. They therefore imply that this Court is the only appropriate venue and the only court that can grant the remedy requested. However, the district court cases cited by Plaintiffs themselves belie that suggestion, and Plaintiffs have made no showing that this Court is the “only” court in which they can obtain relief. They have not demonstrated a legal basis, much less a benefit or necessity, for this Court to reach out beyond its territorial limits to exercise jurisdiction over multiple detainees in three other judicial districts, which fall within the territorial jurisdictions of two different circuit courts. This Court believes that such an exercise of habeas jurisdiction is precisely the type of overreaching the
6

Case 2:20-cv-01093-GGG-KWR Document 12 Filed 04/06/20 Page 7 of 7
Supreme Court in Padilla sought to preclude: the “possibility that every judge anywhere (could) issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.” 542 U.S. at 442 (quoting Carbo v. United States, 364 U.S. 611, 617 (1961)).
Accordingly, because Plaintiffs can obtain relief in the district in which they are confined, this Court can discern no disability to Plaintiffs in applying the “immediate custodian rule” articulated in Padilla to find that the wardens of each facility in which the detainees are confined are the “immediate custodians” of Plaintiffs. Because this Court lacks jurisdiction over the wardens, it lacks jurisdiction over Plaintiffs’ § 2241 claims. The traditional rule, “with respect to habeas petitions ‘designed to relieve an individual from oppressive confinement,’” “has always been that the Great Writ is ‘issuable only in the district of confinement.’” 542 U.S. at 442 (quoting Carbo, 364 U.S. at 618). Accordingly, this Court must conclude that it lacks jurisdiction over Plaintiffs’ § 2241 Petition and Complaint, and thus does not reach the merits of the Motion for TRO or the Petition/Complaint itself.
IT IS ORDERED that Plaintiffs’ Petition/Complaint brought pursuant to 28 U.S.C. § 2241 (R. Doc. 1) is hereby dismissed without prejudice for lack of jurisdiction.5
New Orleans, Louisiana, this 6th day of April 2020.
GREG GERARD GUIDRY UNITED STATES DISTRICT JUDGE 5 This Court finds that severing the plaintiffs into three groups and transferring the cases to three district courts would be overly cumbersome. Accordingly, the Court has dismissed the claims without prejudice to refiling them in the appropriate district court. 7

 
 Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 1 of 63

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

TATALU HELEN DADA MATILDE FLORES DE SAAVEDRA ROSABEL CARRERA SONIA LEMUS TEJADA DEJASO GRISELDA DEL BOSQUE NADIRA SAMPATH GRANT PARDEEP KUMAR SURESH KUMAR LaSalle ICE Processing Center 830 Pine Hill Road Jena, LA 71342;
DIEGO CARRILLO OCH ANTONIO LOPEZ AGUSTIN Richwood County Correctional Center 180 Pine Bayou Circle Richwood, Louisiana 71202;
SIROUS ASGARI Winn Correctional Center 560 Gum Springs Road Winnfield, LA 71483;
ALEX HERNANDEZ Etowah Detention Center 827 Forrest Avenue Gadsden, AL 35901;
EDILIA DEL CARMEN MARTINEZ JOSE RUDEN LIRA ARIAS LEYANIS TAMAYO ESPINOZA VIANKIS MARIA YANES PARDILLO ARNALDO ALEXIS MUJICA RANGLE Adams County Correctional Center 20 Hobo Fork Road Natchez, MS 39120,
Petitioners-Plaintiffs,
v.

PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Civil Action No. ________________

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 2 of 63
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement 1250 Poydras, Suite 325 New Orleans, LA 70113;
MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement 500 12th St., S.W. Washington, DC 20536;
IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th St., S.W. Washington, DC 20536;
SHAWN GILLIS, in his official capacity as Warden, Adams County Correctional Center 20 Hobo Fork Road Natchez, MS 39120;
JONATHAN HORTON, in his official capacity as Sheriff of Etowah County, KEITH PEEK, in his official capacity as Chief Deputy, Etowah County Detention Center 827 Forrest Avenue Gadsden, AL 35901;
STEVEN DEBELLEVUE, in his official capacity as Warden, Richwood County Correctional Center 180 Pine Bayou Circle Richwood, Louisiana 71202;
DAVID COLE, in his official capacity as Warden, LaSalle ICE Processing Center 830 Pine Hill Road Jena, LA 71342;

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 3 of 63

KEITH DEVILLE, in his official capacity as Warden, Winn Correctional Center 560 Gum Springs Road Winnfield, LA 71483,

Respondents-Defendants.

Matthew S. Vogel, La. Bar No. 35363 matt@nipnlg.org Sirine Shebaya* sirine@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876
Andrew Free* Andrew@ImmigrantCivilRights.com LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 844.321.3221 x.1
Jeremy Jong** jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
William P. Quigley, La Bar No. 07769 Quigley77@gmail.com LOYOLA LAW CLINIC 7214 St. Charles Avenue New Orleans, LA 70118 504.710.3074

Counsel for Petitioner-Plaintiffs *pro hac vice applications forthcoming ** admission application forthcoming

April 1, 2020

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 4 of 63
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE RELIEF
INTRODUCTION 1. This case presents a request for immediate relief on behalf of seventeen PetitionerPlaintiffs (“Plaintiffs”), who are highly vulnerable to serious injury and death if they contract COVID-19, the lethal disease that is sweeping the globe. Respondent-Defendants (“Defendants”) are holding Plaintiffs in civil immigration detention in facilities within the New Orleans ICE Field Office area of responsibility, including the LaSalle ICE Processing Center in Jena, Louisiana, Richwood Correctional Center, in Richwood, Louisiana, Winn Correctional Center, in Winnfield, Louisiana, Adams Correctional Center in Natchez, Mississippi, and Etowah County Detention Center in Gadsden, Alabama. The coronavirus feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held, putting Plaintiffs at imminent risk of contracting the lethal COVID-19 disease. 2. The risks and consequences of COVID-19 cannot be overstated. COVID-19 has reached global pandemic status. As of March 31, 2020, nearly 751,000 individuals worldwide have confirmed diagnoses, including more than 140,000, in the United States.1 More than 36,400 individuals worldwide have died as a result of COVID-19, including almost 2,400 in the United States.2 Those numbers are growing exponentially, with more than 57,600 new cases worldwide
1 World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 71, Mar. 31, 2020, available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200331-sitrep-71-covid19.pdf?sfvrsn=4360e92b_4.
2 Id.

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 5 of 63
in the past day alone.3 By the time the Court reads this complaint, there will be diagnoses, and
more death, with no end in sight.
3. As of March 31, 2020, there were nearly 5,237 COVID-19 cases in Louisiana, 1,073 in Mississippi, and 1,000 in Alabama.4 The number of infected people is rising
exponentially. 22 people in Mississippi have died from the disease, 17 people in Alabama have died from the disease, and 239 people in Louisiana have died from the disease.5
4. These data include cases in all of the counties in which these facilities are located. There are 11 cases in Adams County, Mississippi.6 There are eight cases in Etowah County, Alabama.7 In Louisiana, LaSalle Parish, where the LaSalle ICE Processing Center is located, has
two cases, Winn Parish, the site of Winn Correctional Center, has one case, and Ouachita Parish, home to Richwood Correctional Center, has 57 cases and one reported death.8
5. The exponential growth of coronavirus cases in Louisiana has been staggering.
Data released March 21, 2020 show that Louisiana presently has the fastest spread of COVID-10 of any region in the world.9 Indeed, Orleans and Jefferson parishes have amongst the highest
3 Id. 4 Louisiana Department of Health, Coronavirus (COVID-19) (Mar. 31, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Mar. 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19) (Mar. 31, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html. 5 Louisiana Department of Health, Coronavirus (COVID-19) (Mar. 31, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Mar. 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19) (Mar. 31, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html. 6 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Mar. 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html. 7 Alabama Department of Public Health (Mar. 31, 2020),Coronavirus Disease 2019 (COVID-19), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html. 8 Louisiana Department of Health, Coronavirus (COVID-19) (Mar. 31, 2020), http://ldh.la.gov/coronavirus/. 9 Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, 2 (Mar. 21, 2020), https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf; see also Katy Reckdahl, et
2

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 6 of 63
COVID-19 death rates in the country.10 As of March 24, 2020, Mississippi had the twelfth-highest infection rate in the United States.11 Immediate relief is necessary before the coronavirus ignites across the immigration detention facilities that dot Louisiana, Mississippi, and Alabama.
6. Plaintiffs fear for their lives because they have medical conditions which make them vulnerable to serious injury or death should they be infected with COVID-19. And for good reason: they are trapped in facilities which can only be described as breeding grounds for the disease. Despite warnings and pleas for release from public health experts and advocates, Defendants have chosen to continue to confine Plaintiffs in close proximity, without adequate soap and/or hand sanitizer; to admit and transfer individuals without COVID-19 testing or screening; to refuse to implement cleaning and protection procedures adequate to combat COVID-19; and to resist releasing even the most medically vulnerable individuals. The conditions and treatment at these facilities have created a dangerous situation that threatens their lives, as well as the wellbeing of staff, others in the surrounding community, and the general public.
7. There is no known treatment for or vaccine against COVID-19, and there is no known cure. The only known effective measures to reduce the risk of COVID-19 are to prevent infection through social distancing and vigilant hygiene. Yet “social distancing” is a meaningless term in these detention centers, where detainees are in constant close contact with each other and
al., New Orleans Faces a Virus Nightmare and Mardi Gras May Be Why, N.Y. Times, Mar. 26, 2020, available at https://www.nytimes.com/2020/03/26/us/coronavirus-louisiana-new-orleans.html.
10 Kimberly Curth, New Orleans and Jefferson Parish have the Highest COVID-19 Death Rates in the Country, FOX8, Mar. 28, 2020, available at https://www.msn.com/en-us/health/medical/new-orleans-and-jefferson-parishhave-the-highest-covid-19-death-rates-in-the-country/ar-BB11Ownx.
11 Erica Hensley, Mississippi has Nation’s 12th Highest COVID-19 Infection Rate, Mississippi Today, Mar. 24, 2020, available at https://mississippitoday.org/2020/03/24/mississippi-has-nations-12th-highest-covid-19-infectionrate/.
3

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 7 of 63
with facility staff. Increased and vigilant hygiene is similarly unavailable under the conditions at these facilities.
8. Several recent federal court rulings ordering release have explained the health risks—to those who are detained, staff, and the outside community at large—created by large prison and detention populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of detained immigrant in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); Basank v. Decker, No. 1:20-cv-02518-AT (S.D.N.Y. Mar. 26, 2020) (ordering the release of ten people from three immigration detention facilities in New Jersey because “confining vulnerable individuals . . . without enforcement of appropriate social distancing and without specific measures to protect their delicate health ‘pose[s] an unreasonable risk of serious damage to [their] future health’”) (internal citation omitted); Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020) (ordering release of 13 people from three immigration detention facilities in Pennsylvania because “preventative measures” against the “grave risk” of COVID-19 cannot be practiced in “tightly confined, unhygienic spaces”); Fraihat v. Wolf, ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020) (ordering release of individual from immigration detention facility because COVID-19 “can spread uncontrollably with devastating results in a crowded, closed facility”); In the Matter of the Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020) (ordering change to conditions of bail for an individual to postpone incarceration, in part in light of risk of vulnerability to the coronavirus) United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020).
4

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 8 of 63
9. Recognizing the urgency of this situation, judges, prosecutors and correctional authorities across the country have been ordering releases to protect individuals and the public health. Law enforcement officials in New Orleans, Los Angeles, New York City, Chicago, Oakland, New Jersey, Cleveland, Nashville, Houston, San Antonio, Charlotte, and numerous other jurisdictions are releasing thousands of individuals in both civil and criminal detention and incarceration, because of the threat COVID-19 poses inside jails, prisons, and detention centers. On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26.
10. Such releases not only protect the people with the greatest vulnerability to serious illness and death from COVID-19, they also protect all those in custody or working in a prison, jail, or detention center, and reduce the burden on the surrounding region’s health care infrastructure, as they lessen the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. This is particularly significant here, as the rural communities in Louisiana, Mississippi, and Alabama in which these detention centers are located have very limited health care infrastructure.
11. By contrast, Defendants’ response to the threats the pandemic poses to immigrants has been abysmal and haphazard. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health.
12. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency showed a deep failure to appreciate the urgency and threat the COVID-19 pandemic presents, stating that “Plaintiffs’ assertion that detention per se
5

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 9 of 63
poses an increased risk of health complications or death from COVID-19 is purely speculative.”12 ICE’s head-in-the-sand response to the threats of this pandemic will prove deadly to Plaintiffs if it is not remedied through this Court’s intervention.
13. On March 19, 2020, two medical experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties sent a whistleblower letter to Congress, to highlight “the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public,” and arguing that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”13 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency about the impending risks to the health of those in immigration detention and the public at large unless swift mitigation measures, including releasing persons in immigration detention, are taken.
14. Inside the facilities at issue here, Defendants are not consistently adhering to the measures the ICE claims it is taking. For example, Defendants are bringing new individuals into the detention centers without any screening, testing, or mandatory quarantine period, and continue to transfer individuals between detention centers without such protective measures.
15. This echoes a concern of the two DHS medical experts, who say that “the track record of ICE facilities implementing [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.” Moreover, even if ICE was consistently taking these precautions, the DHS experts have explained that they will not be enough without rapidly
12 Respondents-Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020). 13 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-AllenRich-to-Congress-Re.pdf (emphasis in original).
6

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 10 of 63
releas[ing] those who do not pose an immediate danger to public safety. Defendants stubbornly refuse to heed the advice of public health experts, including their own.
16. Plaintiffs, who are not subject to any form of punitive detention, are at risk of serious injury and death because of Defendants’ flawed choices and the conditions in their detention facilities. Defendants’ failure to follow public health guidance endangers the lives of those they have chosen to detain. The only way to effectively inhibit the spread of the coronavirus and to protect Plaintiffs and others from the risks posed by COVID-19 infection is to immediately release Plaintiffs, so that they can actually adhere to the guidance from public health experts and take the necessary steps to protect themselves.
17. Defendants cannot justify continuing to subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective, particularly in light of the alternatives available to them to supervise Plaintiffs. The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 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). Plaintiffs bring this action to remedy grave violations of their constitutional rights that imminently threaten them with serious illness and death.
18. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other detained individuals and entire communities, will face dramatically increased chances of contracting COVID-19, becoming seriously ill, and dying.
7

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 11 of 63
JURISDICTION AND VENUE 19. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution, the federal habeas corpus statute, 28 U.S.C. § 2241, the Administrative Procedure Act, 5 U.S.C. § 551, et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 20. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign immunity), 28 U.S.C. § 1346 (original jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 21. Venue is proper in the Eastern District of Louisiana pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e). All 17 Petitioner-Plaintiffs in this matter are in the legal custody of Respondent-Defendant Dianne Witte, who is the Interim ICE New Orleans Field Office Director. The New Orleans Field Office is responsible for carrying out ICE’s immigration detention operations at all Louisiana, Mississippi, and Alabama detention centers that house detained immigrants.
PARTIES Petitioner-Plaintiffs
22. Petitioner-Plaintiff Tatalu Helen Dada is a 40-year-old woman and Nigerian national, who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. In addition to depression and anxiety, Ms. Dada suffers from Grave’s Disease, which is a serious autoimmune disorder that attacks the thyroid; she suffers from hypothyroidism, hypertension, asthma, malnutrition, and vision loss, and has been hospitalized numerous times due to her rapidly deteriorating health. She is therefore at extremely high risk of severe complications or death if she contracts COVID-19. If released, she will reside with her sister in Ruston, Louisiana.
8

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 12 of 63
23. Petitioner-Plaintiff Matilde Flores de Saavedra is a 78-year-old woman and Mexican national, who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She was recently diagnosed with diabetes, which remains uncontrolled and subjects her to extremely high blood-sugar levels; she also suffers from hypertension. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her son in Falfurrias, Texas.
24. Petitioner-Plaintiff Sirous Asgari is a 59-year-old man and Iranian national who is currently detained at the Winn Correctional Center in Winnfield, Louisiana. He suffers from a chronic lung condition that leaves him susceptible to pneumonia and other infections, as well as hypertension and Grade 2 fatty liver disease. While detained by ICE he has suffered from influenza and pneumonia, as well as fainting from extremely high blood pressure. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Redwood City, California.
25. Petitioner-Plaintiff Diego Carrillo Och is a 65-year-old man and Guatemalan national who is currently detained by ICE at the Richwood Correctional Center in Richwood, Louisiana. Due to his age, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin in Forest, Mississippi.
26. Petitioner-Plaintiff Alex Hernandez is a 49-year-old man and Honduran national who is currently detained by ICE at the Etowah County Detention Center in Gadsden, Alabama. He suffers from hypertension and Barrett’s esophagus, a condition that puts him at higher risk for cancer. He is currently recovering from a recent surgery, which has left him in a weakened state and causes pain and inflammation. He is therefore a high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Los Angeles, California.
9

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 13 of 63
27. Petitioner-Plaintiff Rosabel Carrera is a 59-year-old woman and Mexican national and is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from diabetes, which is not under control, and takes both oral medication and insulin for her condition. She also has a history of stroke and suffers from heart disease, hypertension, arthritis, and vision loss. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her son in White Bluff, Tennessee.
28. Petitioner-Plaintiff Edilia Del Carmen Martinez is a 53-year-old woman and El Salvadoran national who is currently detained by ICE at the Adams County Detention center in Natchez, Mississippi. She suffers from diabetes, which causes dizziness that has become frequent while she has been detained, as well as kidney issues and chronic knee pain. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she would live with her friend in Merced, California.
29. Petitioner-Plaintiff Jose Ruben Lira Arias is a 46-year-old man and Venezuelan national and is currently detained by ICE at the Adams County Detention Center in Natchez, Mississippi. He suffers from diabetes and hypertension. Since his detention, he has experienced higher than normal blood sugar levels. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he would live in a shelter called Casa Marianella in Austin, Texas.
30. Petitioner-Plaintiff Leyanis Tamayo Espinoza is a 46-year-old woman and Cuban national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. She suffers from diabetes, hypertension, chronic renal issues, and malnutrition. She relies on oral medication for her diabetes care. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her cousin in Miami, Florida.
10

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 14 of 63
31. Petitioner-Plaintiff Viankis Maria Yanes Pardillo is a 59-year-old woman and Cuban national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. She suffers from epilepsy, has suffered numerous seizures while in detention, and has a history of hospitalization. Particularly due to her age, she is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her daughter in Kentucky.
32. Petitioner-Plaintiff Arnaldo Alexis Mujica Rangle is a 63-year-old man and Venezuelan national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. He suffers from diabetes, hypertension, high cholesterol, vision loss, and chronic pain. He relies on insulin for his diabetes care. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and children in Daytona, Florida.
33. Petitioner-Plaintiff Sonia Lemus Tejada Dejaso is a 53-year-old woman and Guatemalan national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from heart disease and hypertension and has a history of hospitalization. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her son in Edinburg, Texas.
34. Petitioner-Plaintiff Griselda Del Bosque is a 57-year-old woman and Mexican national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from severe asthma, requires the use of an inhaler, and has had numerous asthma attacks and coughing fits while she has been detained. She also suffers from glaucoma and chronic arm, back, and knee pain, that make it hard for her to walk. She is therefore at high risk of severe
11

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 15 of 63
illness or death if she contracts COVID-19. If released, she will reside with her daughter in Dallas, Texas.
35. Petitioner-Plaintiff Nadira Sampath Grant is a 53-year-old woman and national of Trinidad and Tobago who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from diabetes and diabetic related complications such as neuropathy and issues with her kidneys and vision. She relies on oral medication for her diabetic care. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her husband and son in Fort Lauderdale, Florida.
36. Petitioner-Plaintiff Antonio Lopez Agustin is a 36-year-old man and Mexican national who is currently detained at the Richwood Correctional Center in Richwood, Louisiana. He suffers from heart disease and hypertension and relies on daily medication to control his blood pressure. Due to his poor health, the Richwood Correctional Center has designated him as a person with high-risk medical conditions. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his long-time partner and daughter in Carthage, Mississippi.
37. Petitioner-Plaintiff Suresh Kumar is a 37-year-old man and Indian national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. Since November 2019, Mr. Kumar has participated in a hunger strike in peaceful protest of ICE and federal immigration policies. As a result, Mr. Kumar has lost close to 40 pounds and had to be hospitalized in January 2020. ICE is currently painfully force-feeding Mr. Kumar liquid nutrients through a large tube that runs through his nose and into his esophagus. He is so weakened he requires the use of a wheelchair. He suffers from Hepatitis C, a chronic liver infection, malnutrition, and chronic pain to his chest, head, stomach, throat, and lower back. He is therefore
12

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 16 of 63
at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his brother-in-law in Grants Pass, Oregon.
38. Petitioner-Plaintiff Pardeep Kumar is a 28-year-old man and Indian national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. He also has participated in a hunger strike for close to four months and has lost 24 pounds. He had to be hospitalized on March 20, 2020 due to significant chest pains. He is severely malnourished, which puts him at high risk for heart damage, as well as a kidney infection, chronic pain, and vision loss; he is so weakened he requires the use of a wheelchair. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his uncle in Kent, Washington. Respondent-Defendants
39. Respondent-Defendant Dianne Witte is the Interim ICE New Orleans Field Office Director. The New Orleans Field Office is responsible for carrying out ICE’s immigration detention operations at all Louisiana, Mississippi, and Alabama detention centers that house detained immigrants, including all of Petitioner-Plaintiffs. Defendant Witte is a legal custodian of Petitioner-Plaintiffs. She is sued in her official capacity.
40. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Petitioner-Plaintiffs. He is sued in his official capacity.
41. Respondent-Defendant ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal
13

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 17 of 63
Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Petitioner-Plaintiffs.
42. Respondent-Defendant Shawn Gillis is the Warden of the Adams County Correctional Center, where Petitioner-Plaintiffs Ms. del Carmen Martinez, Mr. Lira Arias, Ms. Tamayo Espinoza, Ms. Yanes Pardillo, and Mr. Mujica Rangle are detained. RespondentDefendant Gillis is a legal custodian of Petitioner-Plaintiffs Ms. del Carmen Martinez, Mr. Lira Arias, Ms. Tamayo Espinoza, Ms. Yanes Pardillo, and Mr. Mujica Rangle. He is sued in his official capacity.
43. Respondent-Defendant Jonathan Horton is the Sheriff of Etowah County, Alabama. As Sheriff, he is responsible for overseeing the administration and management of the Etowah County Detention Center, where Petitioner-Plaintiff Mr. Hernandez is detained. RespondentDefendant Horton is a legal custodian of Petitioner-Plaintiff Mr. Hernandez. He is sued in his official capacity.
44. Respondent-Defendant Keith Peek is the Chief Deputy Sheriff of Etowah County, Alabama. He is responsible for overseeing the administration and management of the Etowah County Detention Center, where Petitioner-Plaintiff Mr. Hernandez is detained. RespondentDefendant Peek is a legal custodian of Petitioner-Plaintiff Mr. Hernandez. He is sued in his official capacity.
45. Respondent-Defendant Steven DeBellevue is Warden of Richwood Correctional Center, where Petitioner-Plaintiffs Mr. Carillo Och and Mr. Lopez Agustin are detained. Respondent-Defendant DeBellevue is a legal custodian of Petitioner-Plaintiffs Mr. Carillo Och and Mr. Lopez Agustin. He is sued in his official capacity.
14

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 18 of 63
46. Respondent-Defendant David Cole is the Warden of the LaSalle ICE Processing Center|, where Petitioner-Plaintiffs Ms. Dada, Ms. Flores de Saavedra, Ms. Carrera, Ms. Tejada Dejaso, Ms. Del Bosque, Ms. Sampath Grant, Mr. Pardeep Kumar, and Mr. Suresh Kumar are detained. Respondent-Defendant Cole is a legal custodian of Petitioner-Plaintiffs Ms. Dada, Ms. Flores de Saavedra, Ms. Carrera, Ms. Tejada Dejaso, Ms. Del Bosque, Ms. Sampath Grant, Mr. Pardeep Kumar, and Mr. Suresh Kumar. He is sued in his official capacity.
47. Respondent-Defendant Keith Deville is the Warden of Winn Correctional Center, where Petitioner-Plaintiff Mr. Asgari is detained. Respondent-Defendant Deville is a legal custodian of Petitioner-Plaintiff Mr. Asgari. He is sued in his official capacity.
FACTUAL BACKGROUND A. COVID-19 Is an Unprecedented and Lethal Global Pandemic. 48. COVID-19 is a disease caused by a novel coronavirus that has reached global pandemic status. As of March 31, 2020, over 751,000 individuals worldwide have confirmed diagnoses, including more than 140,000, in the United States.14 More than 36,400 individuals worldwide have died as a result of COVID-19, including almost 2,400 in the United States.15 Those numbers are growing exponentially, with more than 57,600 new cases worldwide in the past day alone.16
14 World Health Org., Coronavirus disease 2019 (COVID-19) Situation Report – 71, Mar. 31, 2020, available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200331-sitrep-71-covid19.pdf?sfvrsn=4360e92b_4.
15 Id. 16 Id.
15

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 19 of 63
49. Nationally, CDC projections indicate that over 200 million individuals in the
United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.7 million deaths in the worst projections.17
50. President Trump has projected, optimistically, that the United States will experience up to 200,000 coronavirus-related deaths.18
51. COVID-19 is a highly contagious disease that is easily transmitted through
respiratory droplets, especially when one is within six feet of an infected individual. Due to this,
President Trump issued guidelines for U.S. citizens, recommending that all individuals “avoid
nonessential travel, going to work, eating at bars and restaurants, or gathering in groups of more than 10” at least until April 30, 2020 and perhaps until June.19 Its symptoms include fever, cough, and shortness of breath.20
52. People can also spread COVID-19 but be asymptomatic,21 making testing or
seclusion of only those who are symptomatic an ineffective solution.
17 See James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. Times, Mar. 20, 2020, available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-usoutbreak.html; Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. Times, Mar. 13, 2020, available at https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html.
18 See Rebecca Ballhause et al., White House Extends Social-Distancing Guidelines Until End of April, The Wall Street Journal, Mar. 30, 2020, available at https://www.wsj.com/articles/coronavirus-deaths-top-30-000-as-chinaopens-up-province-where-it-began-11585466594?mod=hp_lead_pos1 (“So, if we can hold that down, as we’re saying to 100,000—it’s a horrible number—maybe even less, but to 100,000 — so we have between 100,000 to 200,000 — we all together have done a very good job,” the president said.”).
19 Michael D. Shear, Trump Extends Social Distancing Guidelines Through End of April, N.Y. Times, Mar. 29, 2020, available at https://www.nytimes.com/2020/03/29/us/politics/trump-coronavirus-guidelines.html.
20 Centers for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19) https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
21 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests, Bloomberg, Mar. 22, 2020, available at https://www.bloomberg.com/news/articles/2020-03-22/one-third-of-coronavirus-cases-mayshow-no-symptom-scmp-reports.
16

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 20 of 63
53. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
54. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. 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.
55. Younger and healthy individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in very limited supply, and an entire team of care providers giving 24-hour care, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of support is especially difficult to provide to detained individuals, particularly at unsafe and under-resourced ICE detention facilities.
56. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
57. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
58. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and
17

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 21 of 63
vigilant hygiene, including frequently washing hands with soap and water and disinfecting commonly touched areas, are the only known effective measures to prevent infection. In addition, those who are symptomatic, or who have come into contact with those who have tested positive for the virus, are advised to self-quarantine, removing themselves entirely from physical contact with others to as to prevent spread of the virus for a period of up to 14 days.
59. None of these practices are possible in detention facilities, where large numbers of people are housed in close quarters in congregate settings, with minimal access to sinks, showers, toilets, water, personal hygiene and facility cleaning supplies.
B. COVID-19 is Exceedingly Dangerous for Individuals Like Petitioner-Plaintiffs, Who Have Underlying Health Concerns.
60. Older individuals and those with certain medical conditions face dramatically higher chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy.
61. Individuals detained in immigration detention centers, including those in Louisiana, Mississippi, and Alabama, are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying conditions such as diabetes, lung disease, kidney disease, or other illness.
62. Petitioner-Plaintiffs in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19 and who are currently detained in immigration detention in facilities in Louisiana, Mississippi, and Alabama as they await adjudication of their immigration cases.
18

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 22 of 63
63. Tatalu Helen Dada is a 40-year-old woman and Nigerian national, who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. In addition to depression and anxiety, Ms. Dada suffers from Grave’s Disease, which is a serious autoimmune disorder that attacks the thyroid; she suffers from hypothyroidism, hypertension, asthma, malnutrition, and vision loss, and has been hospitalized numerous times due to her rapidly deteriorating health. She is therefore at extremely high risk of severe complications or death if she contracts COVID-19.
64. Ms. Dada’s medical conditions qualify as disabilities under the Rehabilitation Act. 65. Matilde Flores de Saavedra is a 78-year-old woman and Mexican national, who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She was recently diagnosed with diabetes, which remains uncontrolled and subjects her to extremely high blood-sugar levels; she also suffers from hypertension. She is therefore at high risk of severe illness or death if she contracts COVID-19. 66. Ms. Flores de Saavedra’s diabetes and hypertension qualify as disabilities under the Rehabilitation Act. 67. Sirous Asgari is a 59-year-old man and Iranian national who is currently detained by ICE at Winn Correctional Center in Winnfield, Louisiana. He has chronic lung problems and susceptibility to lung infections, and in fact contracted pneumonia while in early 2020 while in another ICE detention center. While in ICE custody, he has suffered from hypertension. He also has a diagnosis of Grade 2 fatty liver disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. 68. Mr. Asgari’s lung disease and hypertension qualify as disabilities under the Rehabilitation Act
19

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 23 of 63
69. Suresh Kumar is a 37-year-old man and Indian national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. Mr. Kumar suffers from Hepatitis C, a chronic liver infection, malnutrition, and chronic pain to his chest, head, stomach, throat, and lower back. He is therefore at high risk of severe illness or death if he contracts COVID-19.
70. Suresh Kumar’s medical conditions qualify as disabilities under the Rehabilitation Act.
71. Pardeep Kumar is a 28-year-old man and Indian national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. He suffers from malnutrition, which puts him at high risk for heart damage, as well as a kidney infection, chronic pain, and vision loss. He is therefore at high risk of severe illness or death if he contracts COVID19.
72. Pardeep Kumar’s medical conditions qualify as disabilities under the Rehabilitation Act.
73. Diego Carrillo Och is a 65-year-old man and Guatemalan national who is currently detained by ICE at the Richwood Correctional Center in Richwood, Louisiana. Due to his age, he is at high risk of severe illness or death if he contracts COVID-19.
74. Alex Hernandez is a 49-year-old man and Honduran who is currently detained by ICE at the Etowah County Detention Center in Gadsden, Alabama. He suffers from hypertension and Barrett’s esophagus, a condition that puts him at higher risk for cancer. He is therefore a high risk of severe illness or death if he contracts COVID-19.
75. Mr. Hernandez’s medical conditions qualify as a disability under the Rehabilitation Act.
20

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 24 of 63
76. Rosabel Carrera is a 59-year-old woman and Mexican national and is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from diabetes. She also has a history of stroke and suffers from heart disease, hypertension, arthritis, and vision loss. She is therefore at high risk of severe illness or death if he contracts COVID-19.
77. Ms. Carrera’s diabetes and hypertension qualify as disabilities under the Rehabilitation Act.
78. Edilia Del Carmen Martinez is a 53-year-old woman and El Salvadoran national who is currently detained by ICE at the Adam’s County Detention center in Natchez, Mississippi. She suffers from diabetes. She is therefore at high risk of severe illness or death if she contracts COVID-19.
79. Ms. Carmen Martinez’s diabetes qualifies as a disability under the Rehabilitation Act.
80. Jose Ruben Lira Arias is a 46-year-old man and Venezuelan national and is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. He suffers from diabetes and hypertension. Since his detention he has experienced higher than normal blood sugar levels. He is therefore at high risk of severe illness or death if he contracts COVID19.
81. Mr. Lira Arias’s diabetes and hypertension qualify as disabilities under the Rehabilitation Act.
82. Leyanis Tamayo Espinoza is a 46-year-old woman and Cuban national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. She suffers from diabetes, hypertension, chronic renal issues, and malnutrition. She is therefore at high risk of severe illness or death if she contracts COVID-19.
21

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 25 of 63
83. Ms. Tamayo Espinoza’s diabetes and hypertension qualify as disabilities under the Rehabilitation Act.
84. Viankis Maria Yanes Pardillo is a 59-year-old woman and Cuban national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. She suffers from epilepsy, has suffered numerous seizures while in detention, and has a history of hospitalization. Particularly because of her age, she is therefore at high risk of severe illness or death if she contracts COVID-19.
85. Ms. Yanes Pardillo’s medical condition qualifies as a disability under the Rehabilitation Act.
86. Arnaldo Alexis Mujica Rangle is a 63-year-old man and Venezuelan national who is currently detained by ICE at the Adams County Correctional Center in Natchez, Mississippi. He suffers from diabetes, hypertension, high cholesterol, vision loss, and chronic pain. He relies on insulin for his diabetes care. He is therefore at high risk of severe illness or death if he contracts COVID-19.
87. Mr. Mujica Rangle’s diabetes and hypertension qualify as disabilities under the Rehabilitation Act.
88. Sonia Lemus Tejada Dejaso is a 53-year-old woman and Guatemalan national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from heart disease and hypertension and has a history of hospitalization for her heart issues. She is therefore at high risk of severe illness or death if she contracts COVID-19.
89. Ms. Tejada Dejaso’s heart disease and hypertension qualify as disabilities under the Rehabilitation Act.
22

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 26 of 63
90. Griselda Del Bosque is a 57-year-old woman and Mexican national who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from severe asthma, requires the use of an inhaler, and has had numerous asthma attacks and coughing fits while she has been detained. She also suffers from glaucoma and chronic arm, back, and knee pain, that make it hard for her to walk. She is therefore at high risk of severe illness or death if she contracts COVID-19.
91. Ms. Del Bosque’s asthma qualifies as a disability under the Rehabilitation Act. 92. Nadira Sampath Grant is a 53-year-old woman and national of Trinidad and Tobago who is currently detained by ICE at the LaSalle ICE Processing Center in Jena, Louisiana. She suffers from diabetes and diabetic related complications such as neuropathy and issues with her kidneys and vision. She is therefore at high risk of severe illness or death is she contracts COVID-19. 93. Ms. Sampath Grant’s diabetes qualifies as a disability under the Rehabilitation Act. 94. Antonio Lopez Agustin is a 36-year-old man and Mexican national who is currently detained at the Richwood Correctional Center in Richwood, Louisiana. He suffers from heart disease and hypertension and relies on daily medication to control his blood pressure. Due to his poor health, the Richwood Correctional Center has designated him as a person with highrisk medical conditions. He is therefore at high risk of severe illness or death if he contracts COVID-19. 95. Mr. Lopez Agustin’s heart disease and hypertension qualify as disabilities under the Rehabilitation Act. C. Relevant ICE Detention Facilities Are Ticking Time Bombs Already Exposed to
Coronavirus; They Do Not, and Cannot Meet Public Health Standards to Prevent Widespread Infections Inside the Facilities and Are Deliberately Indifferent to the Known Health Risks
23

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 27 of 63
96. The LaSalle, Winn, and Richwood facilities are located in Louisiana, the Adams
facility is located in Mississippi near the Louisiana border, and the Etowah facility is located in
Alabama – though all of them fall under the jurisdiction of the New Orleans ICE Field Office
directed by Respondent-Defendant Witte. All of these states, and especially Louisiana, are
experiencing a coronavirus outbreak and public officials have put in place a number of significant
restrictions on public gatherings, including by closing down schools, bars, restaurants, and other
public places, limiting the size of public gatherings, and, in some cases, issuing ‘shelter in place’
orders, requiring residents to remain in their homes.
97. As of March 31, 2020, there were nearly 5,237 COVID-19 cases in Louisiana, 1073 in Mississippi, and 1,000 in Alabama.22 The number of infected people is rising exponentially.
Twenty-two people in Mississippi have died from the disease, seventeen people in Alabama have died from the disease, and 239 people in Louisiana have died from the disease.23
98. These data include cases in all of the counties in which these facilities are located. There are eleven cases in Adams County, Mississippi,24 one of whom is Adams County Sheriff Travis Patten.25 There are eight cases in Etowah County, Alabama.26 In Louisiana, LaSalle parish,
22 Louisiana Department of Health, Coronavirus (COVID-19) (March 31, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (March 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19) (March 31, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html.
23 Louisiana Department of Health, Coronavirus (COVID-19) (March 31, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (March 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19) (March 31, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html.
24 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (March 31, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html.
25 Patrice Clark, Adams County Sheriff Tests Positive for Coronavirus, WLBT, Mar. 29, 2020, available at https://www.msn.com/en-us/news/us/adams-county-sheriff-tests-positive-for-coronavirus/ar-BB11Ssk2.
26 Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19), (March 29, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html.
24

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 28 of 63
where the LaSalle ICE Processing Center is located, has two cases, Winn Parish, the site of Winn Correctional Center, has one case, and Ouachita Parish, home to Richwood Correctional Center, has 57 cases and one reported death.27
99. The exponential growth of coronavirus cases in Louisiana has been staggering. Data released March 21, 2020 by a researcher at the University of Louisiana Lafayette found that Louisiana presently has the fastest spread of COVID-10 of any region in the world.28 Indeed, Orleans and Jefferson parishes have amongst the highest COVID-19 death rates in the country.29 As of March 24, 2020, Mississippi had the twelfth-highest infection rate in the United States.30 There is an immediate and impending threat that the coronavirus will spread uncontrollably in all of these facilities.
100. Given the shortage of COVID-19 tests in the United States, generally, these detention facilities cannot currently conduct aggressive, widespread testing to identify and track all COVID-19 cases.
101. It is thus equally impossible for detention facilities to consistently and adequately screen detained individuals and staff for new, asymptomatic infection.
102. In the absence of widespread testing, there is no way to be certain that COVID-19 is not already widespread in these facilities. And given the rapid spread of COVID-19 throughout
27 Louisiana Department of Health, Coronavirus (COVID-19) (March 29, 2020), http://ldh.la.gov/coronavirus/. 28 Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, 2 (Mar. 21, 2020), https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf; see also Katy Reckdahl, et al., New Orleans Faces a Virus Nightmare and Mardi Gras May Be Why, N.Y. Times, Mar. 26, 2020, available at https://www.nytimes.com/2020/03/26/us/coronavirus-louisiana-new-orleans.html. 29 Kimberly Curth, New Orleans and Jefferson Parish Have the Highest COVID-19 Death Rates in the Country, FOX8, Mar. 28, 2020, available at https://www.msn.com/en-us/health/medical/new-orleans-and-jefferson-parishhave-the-highest-covid-19-death-rates-in-the-country/ar-BB11Ownx. 30 Erica Hensley, Mississippi Has Nation’s 12th highest COVID-19 Infection Rate, Mississippi Today, Mar. 24, 2020, available at https://mississippitoday.org/2020/03/24/mississippi-has-nations-12th-highest-covid-19-infectionrate/.
25

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 29 of 63
Louisiana, Mississippi, and Alabama, and daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities on a weekly or even daily basis, it is only a short matter of time before the disease becomes widespread among people detained in close, unsanitary conditions.
103. According to Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and a specialist in infectious diseases in the context of jails and prisons, an outbreak in these detention centers is “highly likely and . . . the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case.”
104. Conditions in these detention centers make rapid spread of COVID-19 very likely. Detained individuals are housed in close quarters and in large groups, often with many dozens sleeping in one room, in beds spaced well under the distance of six feet apart that the CDC recommends to maintain social distancing.
105. Detained individuals in these facilities use common spaces together, sharing tables, telephones, and bathrooms. The hallways are tight, and people in the hallways are constantly in very close proximity to each other. Bathrooms with small numbers of showers, toilets and sinks are used by large numbers of people and are not sanitized or disinfected after each use. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. Many guards, staff and even doctors do not wear masks or gloves, and detained individuals are not provided with them.
106. Many facilities do not have regular cleaning, leaving detained individuals to clean the sleeping areas and bathrooms with spray bottles, and rags they must reuse. Bleach is not
26

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 30 of 63
available in some of the facilities, and they are also not provided with protective equipment to clean.
107. Additionally, alcohol-based hand sanitizers are unavailable at these facilities, and frequent handwashing is difficult at best given minimal access to soap and sinks. In some facilities there may be signs instructing people to wash hands, but there is no effort to educate detained people about frequency or method.
108. Because of these conditions, outbreaks of infectious diseases are extremely common in confined detention centers such as these and have resulted in the hospitalization or death of some individuals. Detained persons like Petitioner-Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”31 Individuals who are detained cannot protect themselves by social distancing and vigilant hygiene as they could in the community. Congregate settings such as these detention centers allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing.
109. Therefore, a coronavirus brought into a detention facility will quickly spread among the dense group of detained individuals, including individuals, like Petitioner-Plaintiffs, who are at high risk of severe illness or death from COVID-19.
110. Moreover, these detention centers are also ill-equipped to manage an infectious disease outbreak. None of the facilities have 24-hour medical care with onsite physicians and they
31 Keri Blakinger & Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, The Marshall Project, Mar. 6, 2020, available at https://www.themarshallproject.org/2020/03/06/when-purell-iscontraband-how-do-you-contain-coronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
27

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 31 of 63
all have very limited on-site medical facilities. One Petitioner-Plaintiff at LaSalle, Pardeep Kumar, has been told that he cannot be transferred to a higher level of emergency medical care in Alexandria, Louisiana, because of a high rate of coronavirus there. Further, the medical systems in the rural communities surrounding these detention centers are already beginning to be overloaded, significantly reducing the capacity to provide emergency and intensive medical care.
111. The Louisiana, Mississippi, and Alabama detention centers also do not have negative pressure isolation units, meaning that they do not have any capacity to truly isolate spread of the disease through airborne respiratory droplets. Putting infected individuals in solitary confinement is an ineffective way to prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. This makes containing the illness and caring for those who have become infected virtually impossible.
112. Further, the Louisiana, Mississippi, and Alabama detention facilities have continued to allow large numbers of detained people to enter and leave each facility, exposing thousands within the detention centers to close contact with potential new carriers. After a COVID19 exposure was suspected at ICE’s Alexandria Staging Facility, more than 30 men, including Petitioner-Plaintiff Asgari, were transferred from there to Winn, where they were housed with a dozen men already at the latter facility.
113. The coronavirus has already started to spread inside U.S. prisons and jails, and experts predict a mass contagion is only a matter of time.32 For example, on Friday, March 20, 2020 New York City officials had confirmed just one case at their jail facilities. The next day, they
32 See Hannah Summers, ‘Everyone Will Be Contaminated’: Prisons Face Strict Coronavirus Controls, The Guardian, Mar. 23, 2020, available at https://www.theguardian.com/global-development/2020/mar/23/everyone-willbe-contaminated-prisons-face-strict-coronavirus-controls.
28

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 32 of 63
confirmed 19. Two days later, there were 38.33 By March 25, 2020, Rikers Island alone had 52
confirmed cases. It now has over 165 confirmed cases amongst those who are incarcerated, and
there are roughly 130 confirmed cases amongst staff.34 Louisiana has seen the first federal Bureau
of Prisons (“BOP”) fatality at the BOP facility in Oakdale, Louisiana,35 and the Louisiana
Department of Corrections reports that seven incarcerated people in Oakdale have confirmed
cases, though officials there have stopped testing for the virus due to its “sustained transmission”.36
Five staff have tested positive at the Orleans Justice Center, the jail in New Orleans, nine staff
have self-quarantined, and seven detained individuals are in isolation.37
114. Despite these widespread warnings, the Louisiana, Mississippi, and Alabama
detention facilities—like ICE facilities across the country—remain woefully unprepared and
incapable of taking necessary precautions to protect people in their custody against a life-
threatening illness.
D. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease and Is Contrary to the CDC Infectious Disease Guidance ICE is Required to Follow.
33 A.P., Coronavirus: 38 Test Positive in New York City Jails, Including Rikers Island, The Guardian, Mar. 22, 2020, available at https://www.theguardian.com/us-news/2020/mar/22/coronavirus-outbreak-new-york-city-jailsrikers-island. 34 See Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, Mar. 30, 2020, available at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html.
35 Reuters, Prisoner Serving Time for Drug Charge is First U.S. Inmate to Die From COVID-19, N.Y. Times, Mar. 28, 2020, available at https://www.nytimes.com/reuters/2020/03/28/us/28reuters-heath-coronavirus-prisondeath.html.
36 Nicholas Chrastil, Louisiana Federal Prison No Longer Testing Symptomatic Inmates for Coronavirus Due to ‘Sustained Transmission’, The Lens, Mar. 31, 2020, available at https://thelensnola.org/2020/03/31/louisianafederal-prison-no-longer-testing-symptomatic-inmates-for-coronavirus-due-to-sustainedtransmission/?utm_source=The+Lens&utm_campaign=c001b3be4dEMAIL_CAMPAIGN_2020_03_31_05_46&utm_medium=email&utm_term=0_bbcdaba031-c001b3be4d407119417.
37 Orleans Parish Sheriff’s Office, Orleans Parish Sheriff’s Office Update Regarding COVID-19 Precautions and Activities (Mar. 29, 2020), available at http://www.opcso.org/index.php?option=com_content&view=article&id=634:orleans-parish-sheriffs-office-updateregarding-covid-19-precautions-and-activities&catid=1:latest-news.
29

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 33 of 63
115. ICE sets standards for facilities that detain individuals in ICE custody, including the five facilities where Petitioner-Plaintiffs are currently detained. National Detention Standards for immigration detention facilities were first promulgated in 2000 and renamed and reissued by ICE as Performance-Based National Detention Standards (“PBNDS”) in 2008. ICE again reissued these standards in 2011 and revised them in December 2016.
116. The PBNDS govern the prisons ICE uses to hold civil detainees, including service processing centers, contract detention facilities, and state or local government facilities used by ERO to detain people for more than 72 hours pursuant to intergovernmental service agreements.38
117. The PBNDS, among other things, govern the medical standards for each detention facility dedicated to housing individuals in ICE custody.39
118. The PBNDS are supposed to “ensure[] that detainees have access to appropriate and necessary medical, dental and mental health care, including emergency services.” PBNDS §4.3. (“Medical Care”). Facilities are required to have plans to address the management of infectious and communicable diseases that include “control, treatment and prevention strategies.” PBNDS §4.3 (V)(C)(3).
119. The PBNDS also mandate that “Center for Disease Control and Prevention (“CDC”) guidelines for the prevention and control of infectious and communicable diseases shall be followed.” PBNDS §4.3 (II)(10) (emphasis added).
38 ICE Performance-Based Detention Standards 2011 (“PBNDS”), available at https://www.ice.gov/detentionstandards/2011.
39 PBNDS, § 4.3 (“Medical Care”), available at https://www.ice.gov/doclib/detention-standards/2011/4-3.pdf.
30

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 34 of 63
120. In March 2020, in response to the COVID-19 outbreak, the CDC issued several guidelines in order to prevent the spread of COVID-19.40
121. In order to limit the spread of COVID-19, the CDC has recommended that gatherings be limited to 50 people or less, canceling all “gatherings of more than 10 people for organizations that serve higher-risk population,” and warns that “the density of attendees within a confined area,” increases the risk of spreading the virus.41 These guidelines recommend that individuals remain 6 feet away from one another.
122. Additionally, on or about March 23, 2020, the CDC issued guidance for detention facilities “including…federal and state prisons, local jails, and detention centers.”42
123. The CDC guidance states that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced” and warns that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress… and incarcerated/detained persons may have medical conditions that increase their risk of severe disease from COVID-19.” 43
40 See CDC Guideline, Gatherings and Community Events, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html; CDC guideline, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html.
41 Center for Disease Control, Gatherings and Community Events, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html. See also Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf
42 Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 2020, available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
43 Id.
31

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 35 of 63
124. Further, the CDC guidance mandates that detention facilities “[e]nsure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies… are on hand and available… provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing…” and emphasizes the need for social distancing as a mechanism for preventing the transmission of COVID-19.44
125. The CDC has also warned that individuals who are 65 and older or who have an array of underlying conditions, including individuals with asthma, blood disorders, heart disease, lung conditions, and those with compromised immune systems, are at a higher risk of developing serious complications if they were to contract COVID-19.45
126. ICE issued an “Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19)” and has established a webpage entitled “ICE Guidance on COVID-19.” These documents (collectively the “ICE Protocols”) will not protect Petitioner-Plaintiffs. The protocols also do not address imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. Nor do they implement the CDC’s guidelines for the management of the novel coronavirus in correctional and detention settings.
127. The ICE Protocols do not even offer an effective way to determine who has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal.
44 Id. 45 CDC, Coronavirus Disease 2019 (COVID-19): People who are at higher risk for severe illness (Mar. 26, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fpeople-at-higher-risk.html.
32

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 36 of 63
March 19, 2020) (ordering release on bond in part because the government’s management plan did not “say anything about testing”).
128. ICE has temporarily suspended social visitation in all detention facilities. But staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
129. Anything short of aggressive screening and testing of all detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor the Louisiana, Mississippi, and Alabama facilities have the resources necessary to engage in such measures, especially considering the shortage in available tests.
130. Instead, the only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to the coronavirus. Even assuming adequate space, isolation of people who are ill is generally an ineffective way to prevent transmission of COVID-19 because air continues to flow outward from rooms to the rest of the facility and because asymptomatic people also transmit the disease. Further, there is substantial evidence that ICE’s COVID-19 protocols are not being followed in detention centers throughout the country, including in the Louisiana, Mississippi, and Alabama detention facilities, and that ICE is otherwise failing to provide an adequate response—which has historically been the case—exacerbating the risk of harm to Petitioner-Plaintiffs.
131. ICE has failed to follow the CDC guidelines designed to prevent the spread of COVID-19 in any of the five detention centers where Petitioner-Plaintiffs are held.
132. In LaSalle ICE Processing Center, where Petitioner-Plaintiffs Ms. Dada, Ms. Del Bosque, Ms. Sampath Grant, Ms. Carrera, Ms. Tejada Dejaso, Ms. Flores de Saavedra, Mr. Suresh Kumar and Mr. Pardeep Kumar are being detained, 80 people share one dorm, sharing at most 6
33

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 37 of 63
toilets, 3 showers, 8 sinks and one microwave, with all day spent indoors except for 2-3 hours of exercise in an enclosed yard. At least 15 new detained people have been brought into the facility in the last two weeks, including one person brought into the facility who was sneezing and coughing. Conditions are unsanitary, with no sinks to clean food bowls. Detained people who clean the dorms for $1.00 per day are not given no masks or other protective gear for cleaning, and often run out of cleaning supplies. Beds are spaced a yard and a half apart, staff and detained people are not given masks or gloves, and dorms are cleaned only once per day. Doctors in the medical unit, where Petitioner-Plaintiffs Suresh Kumar and Pardeep Kumar are detained, do not wear masks.
133. In Richwood Correctional Center, where Petitioner-Plaintiffs Mr. Lopez Agustin and Mr. Carrillo Och are detained, 66 people share one dorm, 4 toilets, 4 phones, and 7 showers. Detained people share triple bunk beds, which are spaced only half a meter apart. Guards do not wear masks or gloves.
134. In Adams County Correctional Facility, where Petitioner-Plaintiffs Mr. Mujica Rangle, Mr. Lira Arias, Ms. Tamayo Espinoza, Ms. Yanes Pardillo, and Ms. del Carmen Martinez are detained, common spaces have over 100 people gathered at one time, and much of the staff does not wear masks or gloves. There is no space for social distancing, with sick people isolated rarely if ever. Dorms are cleaned only once per day, sometimes without bleach, and detained people sometimes do not have enough soap to wash hands. Food is provided on dirty plates and utensils, and the water is not clean. In the last month there have been two large transfers of detained women into the facility.
135. In the Winn Correctional Center, where Petitioner-Plaintiff Asgari is detained, one shower and two unenclosed toilets are available for 44 detained men, rusted metal beds are spaced less than two feet apart, and the environment is so humid that the men’s bed sheets are soaked with
34

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 38 of 63
perspiration each morning. Cleaning is done by the detained men, with some bleach made available but no masks or other protection.
136. In Etowah, where Petitioner-Plaintiff Hernandez is housed, 62 detained men share one unit. The men share dining room tables, telephone, and toilets, with no way to disinfect between uses. Soap is in short supply, and ICE has moved 10 new people into the unit in the past two weeks.
137. In the LaSalle, Adams, Richwood, Winn, and Etowah facilities, ICE has large numbers of people sleeping within as little as half a meter apart; has failed to provide enough cleaning materials or frequency of cleaning to prevent spread of illness from surfaces; has not provided detained people with adequate soap or hygiene facilities for hand-washing crucial to prevent the spread of COVID-19; has provided no masks, gloves or protective gear for detained people or most staff; and has transferred new people into the facilities within the last several weeks, after the outbreak of COVID-19 began, all in violation of CDC guidelines.
138. Importantly, the COVID-19 pandemic—and ICE’s unreasonable response to it— will significantly strain ICE’s already broken medical care system. Long before the COVID-19 outbreak, numerous public reports, including by DHS itself, have identified serious and substantial flaws in ICE’s medical care system. For example, a 2017 OIG report that assessed care at certain ICE facilities identified “lack of cleanliness and limited hygienic supplies” as well as “long waits for the provision of medical care[.]”46 Other reports echo these alarming findings about substandard medical care in ICE facilities.47
46 DHS Office of the Inspector General, Concerns About ICE Detainee Treatment and Care at Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf. 47 See, e.g., U.S. Gov’t Accountability Off., GAO-16-23: Immigration Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), available at https://www.gao.gov/assets/680/675484.pdf; Human Rts. Watch et al.,, Code Red: The Fatal Consequences of
35

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 39 of 63
139. Immigration detention facilities have faced outbreaks of other infectious diseases
in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor access
to resources and medical care. As recently as last year, ICE mishandled and failed to take adequate
measures to protect detained individuals in Louisiana against outbreaks of chicken pox and mumps.48
140. And ICE has a long history of mishandling infectious and communicable diseases,
struggling to contain them, and failing to follow nationally accepted standards. The Office of the
Inspector General (“OIG”) of the Department of Homeland Security (“DHS”) even concluded in
a 2019 report that ICE “does not adequately hold detention facility contractors accountable for not
meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to
exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”49
141. Moreover, ICE has routinely failed to remedy inhumane conditions because,
according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently
hold facilities accountable for correcting them, which further diminishes the usefulness of inspections. . . . with some deficiencies remaining unaddressed for years.”50
Dangerously Substandard Med. Care in Immigration Detention, at 15, 19, 25, 46 (June 2018), available at https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020), available at https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagiousdiseases-our-analysis-shows-its-a-danger-to-the-public.
48 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-gettingslammed-with-mumps-and-chicken-pox.
49 See DHS Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, OIG-19-18, at 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 50 See DHS Office of the Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, at 1 (June 26, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
36

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 40 of 63
142. ICE has even publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for new people they arrest in the field.51 But the agency still has no plan to release vulnerable individuals who are currently in custody,52 and has not stopped bringing new people into the detention centers.
143. Given the rapid spread of COVID-19, the likelihood of spread before a person infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure to meet adequate standards for controlling infectious disease outbreaks in its facilities, and current conditions at the Louisiana, Mississippi, and Alabama detention centers, Defendants cannot prevent the spread of COVID-19 in those facilities.
E. ICE’s Inadequate Response to COVID-19 Has Also Unreasonably Limited Petitioner-Plaintiffs’ Right of Access to Counsel.
144. ICE’s regulations provide for meaningful access to counsel. See 8 C.F.R. §292.5(b) (requiring that “[w]henever an examination is provided for . . . the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or crossexamine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs.”).
51 See Maria Sacchetti and Arelis R. Hernández, ICE to stop most immigration enforcement inside the U.S., will focus on criminals during coronavirus outbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html.
52 Noah Lanard, ICE Is Ignoring Recommendations to Release Immigrant Detainees to Slow the Spread of Coronavirus, Mother Jones (Mar. 20, 2020), available at https://www.motherjones.com/politics/2020/03/ice-isignoring-recommendations-to-release-immigrant-detainees-to-slow-the-spread-of-coronavirus/.
37

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 41 of 63
145. In addition, the PBNDS provide the primary mechanism through which ICE executes its duty to ensure access to counsel. The PBNDS require that facilities “permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days ... and a minimum of four hours per day on weekends and holidays.” Id. at § 5.7 (IV)(J)(2). Meetings between detained people and legal representatives must be “confidential” and “[p]rivate consultation rooms shall be available for such meetings.” Id. at § 5.7 (II)(2). In addition, “[d]etainees and their legal counsel shall be able to communicate effectively with each other,” “[p]rivacy for detainee telephone calls regarding legal matters shall be ensured,” and “[t]elephone access procedures shall foster legal access and confidential communications with attorneys.” Id. at § 5.6 (II)(4)-(6).
146. ICE has erected numerous barriers to meaningful access to counsel to people detained in immigration facilities long before the outbreak of COVID-19, for example by detaining people in remote locales far from family and counsel such as the LaSalle, Adams, Richwood, Winn, and Etowah facilities. In addition, ICE and the entities it contracts with to detain immigrants frequently restrict access to interpreters, limit in-person contact with attorneys, or interfere with confidential communications with counsel through scarcity of private meeting rooms and telephones.
147. These barriers to meaningful access to counsel have been heightened during the COVID-19 emergency. On March 13, 2020, ICE announced that it would be suspending all social visitation to detained people and issuing limitations on in-person legal visitation. For example, in addition to requiring attorneys seeking in-person contact with their clients to undergo “the same [screening] procedures as staff . . . ICE will require all legal visitors to provide and wear PPE (e.g.,
38

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 42 of 63
gloves, N-95 masks, and eye protection) while visiting with any client at any facility.”53 There is currently a shortage of PPE and other protective materials across the nation, and attorneys that cannot obtain PPE are not able to meet with their clients.
148. There is no parallel requirement for guards and staff who enter from the outside community to wear PPE while inside detention facilities. Indeed, many guards and staff at the LaSalle, Winn, Adams, Richwood and Etowah facilities do not wear masks, gloves, or other forms of PPE while on duty.
149. LaSalle provides essentially no confidential phone access for detained people. The Adams and Richwood facilities have no VTC capability. With few telephones shared among several dozen people in all facilities and several days’ waiting time for the VTC system in facilities with such capabilities, detained people do not have adequate access to counsel when in-person visitation is limited.
150. These barriers are heightened even further for detained people like PetitionerPlaintiffs, whose native language is not English, who may not be familiar with the United States court system, and who are disabled and/or facing significant medical challenges.
151. At a time when individuals in detention are facing increasing risks of harm as a result of the COVID-19 pandemic, access to attorneys is essential for the purpose of preparing highly fact-intensive applications for bond and parole proceedings. These restrictions significantly reduce, and in some cases eliminate, meaningful access to counsel and the courts, for vulnerable people facing the extremely high stakes of immigration proceedings.
F. The Consensus of Public Health Experts Is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect them From Serious Illness or Death.
53 ICE Guidance on COVID-19 (updated March 24, 2020), available at https://www.ice.gov/coronavirus#wcmsurvey-target-id. “PPE” refers to “Personal Protective Equipment.”
39

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 43 of 63
152. The only viable public health strategy currently available in the United States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have consistently recommended the release of vulnerable detained individuals from custody.
153. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns with the agency about the specific risk to detained immigrants as a result of COVID-19. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”54
154. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. For example, Iran temporarily released more than 80,000 detained individuals to curb the spread of the virus.55 In the United States, several jurisdictions including Los Angeles, New York, and Chicago have also released detained individuals for the
54 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-AllenRich-to-Congress-Re.pdf.
55 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/iran-temporarily-frees85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M.
40

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 44 of 63
same reasons.56 Here in New Orleans, Orleans Parish Sheriff Marlin Gusman has released
individuals and called upon the courts to do so as well.57
155. Releasing the most vulnerable people, such as Petitioner-Plaintiffs, would also
reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention
center, those institutions would bear the brunt of having to treat infected individuals from detention
centers and would have fewer medical resources available for the general population.
156. ICE has the authority to release individuals from custody on medical grounds and
has routinely exercised its authority to release particularly vulnerable detained individuals like
Petitioner-Plaintiffs. The former Acting Director of ICE, John Sandweg, has stated that “ICE can,
and must, reduce the risk [COVID-19] 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.”58
56 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, New York Times (Mar. 30, 2020), available at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; Maura Dolan, Alene Tchekmedyian & Paige St. John, California releases more jail inmates amid coronavirus crisis, Los Angeles Times (Mar. 20, 2020), available at https://www.latimes.com/california/story/2020-03-20/californiareleases-more-jail-inmates-amid-coronavirus-crisis; David Struett, Cook County Jail releases several detainees ‘highly vulnerable’ to coronavirus, Chicago Sun-Time (Mar. .17, 2020), available at https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid-19.
57 The Orleans Parish Sheriff’s Office has released at least 23 individuals from the Orleans Justice Center, the parish jail. WDSU Digital Team, Orleans Parish Sheriff’s Office releases some inmates with minor charges under COVID-19 plan, WDSU (Mar. 19, 2020), available at https://www.wdsu.com/article/orleans-parish-sheriffs-officereleases-some-inmates-with-minor-charges-under-covid-19-plan/31788756#. Orleans Parish Sheriff Marlin Gusman has also called on the judges of the Orleans Parish Criminal District Court to release individuals. Letter from Orleans Parish Sheriff Marlin N. Gusman to Hon. Robin Pittman, Deputy Chief Judge, Orleans Parish Criminal District Court (Mar. 26, 2020), available at https://www.documentcloud.org/documents/6819741-Letter-FromSheriff-Gusman-to-Judge-Pittman.html..
58 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic Monthly (Mar. 22, 2020), available at https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS News (Mar. 19, 2020), available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detentionoutbreak/.
41

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 45 of 63
LEGAL FRAMEWORK A. Petitioner-Plaintiffs have a Substantive Due Process Right to Protection from Serious
Illness and Potentially Lethal Harm. 157. Because Petitioner-Plaintiffs are in federal civil immigration detention, their constitutional rights flow from the procedural and substantive guarantees of the Fifth Amendment. Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996); Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986). 158. When the government holds individuals in its custody, it assumes the affirmative obligation to provide for their basic human needs, including medical care, reasonable safety, and protection from harm. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989); Hare, 74 F.3d at 650 (5th Cir. 1996). A government “transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause” when it fails to satisfy its “affirmative duty to protect.” DeShaney, 489 U.S. at 200. 159. “Under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Hare, 74 F.3d at 651. See also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Therefore, persons detained civilly, including in immigration detention like Petitioner-Plaintiffs, are entitled to “more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982); In re Kumar, 402 F. Supp. 3d 377, 384 (W.D. Tex. 2019). A person detained civilly has due process rights that are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Hare., 74 F.3d at 639 (citations omitted). 160. Courts have held that an immigration detainee’s due process rights should be evaluated at an even higher standard than that of pretrial detainees. In re Kumar, 402 F. Supp. 3d
42

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 46 of 63
at 384; Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). But at the very least, the standard applicable in the pretrial criminal detention context applies here.
161. The government violates the due process rights of a person in civil detention when the conditions of his or her confinement “amount[s] to punishment.” Garza v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019), cert. denied sub nom. Garza v. City of Donna, Texas, 140 S. Ct. 651 (2019). 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.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); accord Hare, 74 F.3d at 640 (5th Cir. 1996).
162. To show that a condition of confinement amounts to punishment, the detained person need not demonstrate an official subjectively or maliciously intends to punish; instead “intent may be inferred from the decision to expose the detainee to an unconstitutional condition.” Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or 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.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects a detainee to the risk of serious injury, illness or death “amounts to unconstitutional punishment.” Shepherd, 591 F.3d at 454. Such a pattern is evidenced by, for example, failing to provide adequate means to control a known risk of serious infections. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208 (5th Cir. 2011).
163. In addition, it is cruel and unusual punishment under the Eighth Amendment, and therefore necessarily a violation of the Fifth Amendment’s Due Process Clause that is applicable here, for a federal official to show “deliberate indifference to a substantial risk of serious harm” to
43

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 47 of 63
a detainee. Doe v. Robertson, 751 F.3d 383, 385 (5th Cir. 2014) (citing Farmer v. Brennan, 511 U.S. 825 (1994)); Hare, 74 F.3d at 649. This occurs, for example, when officials “know[] of and disregard[] an excessive risk to inmate health or safety.” Doe v. Robertson, 751 F.3d at 388.
164. A detained person “does not need to show that death or serious illness has yet occurred to obtain relief,” instead, they need only “show that the conditions pose a substantial risk of harm to which… officials have shown a deliberate indifference.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004). Federal custodians may not 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.” Helling v. McKinney, 509 U.S. 25, 33 (1993).
165. Specifically, housing detained persons in crowded conditions where they are at risk of infectious disease is unconstitutional, even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Nor can officials “be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33.
166. Despite their awareness of the rapid spread of COVID-19, the importance of social distancing and sanitary practices for its prevention, the threat that it poses to the lives of those who, like Petitioner-Plaintiffs, have certain underlying medical conditions, and the impossibility of protecting Petitioner-Plaintiffs who are held in ICE detention centers, Defendants continue to detain Petitioner-Plaintiffs. This amounts to a punitive condition of confinement or, at the very least, deliberate indifference to a substantial risk of serious harm to Petitioner-Plaintiffs – either of which suffices to show a due process violation and compels an order of release.
44

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 48 of 63
B. ICE Lacks a Constitutionally Sufficient Purpose for Continued Detention of Medically Vulnerable Individuals. 167. Non-criminal confinement “constitutes a significant deprivation of liberty that
requires due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)); see also Foucha, 504 U.S. at 80 (“We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty.” (quoting United States v. Salerno, 481 U.S. 739, 750 (1987)).
168. Due process requires that the nature and duration of a noncriminal confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); Brown v. Taylor, 911 F.3d 235, 243 (5th Cir. 2018).
169. The only legitimate purpose, consistent with due process, for federal civil immigration detention is to prevent flight risk and ensure the detained person’s attendance for a legal hearing adjudicating their status or potential removal, or to otherwise ensure the safety of the community. Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
170. The purpose of ensuring attendance at a merits hearing is fundamentally eviscerated where detained persons, such as Petitioner-Plaintiffs are exposed to coronavirus, symptomatic, seriously ill, or even dead. Continued detention in such circumstances is arbitrary, purposeless restraint entirely inconsistent with the principle of proportionality at the heart of due process.
171. Once an otherwise valid basis for detention no longer applies, substantive due process requires the state to release the detained person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997) (upholding statute
45

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 49 of 63
requiring civil confinement for sex offenders in part because it provided for immediate release once an individual no longer posed a threat to others).
C. Petitioner-Plaintiffs’ Continued Detention Violates Procedural Due Process 172. Where a governmental action limits a fundamental right, here freedom from
detention, heightened scrutiny is applied, and the governmental action will be upheld only if it is necessary to promote a compelling governmental interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Cooper v. Oklahoma, 517 U.S. 348, 363 (1996)) (“Due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake . . . are both particularly important and more substantial than mere loss of money.”) (internal citations and quotations omitted). In addition to demonstrating a “compelling interest” in detention, the government must show that the detention is narrowly tailored, i.e., “implemented in a manner that is ‘carefully limited’ and ‘narrowly focused.’” Reno v. Flores, 507 U.S. 292, 302 (1993) (quoting Foucha, 504 U.S. at 81).
173. In addition to substantive limits on detention, detained persons must “be afforded adequate procedures ensuring against erroneous confinement.” Demore v. Kim, 538 U.S. 510, 566, n. 22 (2003) (Souter, J. concurring). See id. at 551 (“the substantive demands of due process necessarily go hand in hand with the procedural.”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (Noncriminal detention must be subject to “strong procedural protections.”). At bottom, Fifth Amendment’s Due Process Clause requires proportionality in government conduct. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Austin v. United States, 509 U.S. 602, 606 (1993).
174. As previously alleged, the government’s only legitimate interest in PetitionerPlaintiffs’ continued detention – either to minimize flight risk pending trial or removal or to prevent danger to the community, Zadvydas, 533 U.S. at 690 – is no longer applicable. Yet the
46

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 50 of 63
purportedly legitimate government purposes for detention simply fall away when someone is facing lethal harm. Continued detention despite changed circumstances that render the basis of detention null, is the height of arbitrariness. See Reno v. Flores, 507 U.S. at 343 (“a blanket rule that simply presumes that detention is more appropriate than release to responsible adults is not narrowly focused on serving that interest.).
175. Similarly, given restrictions on counsel and the adjudicative process, all removal proceedings have or likely will be suspended. And, a hearing weeks or months from this date may be no relief at all, because Petitioners may contract COVID-19 and die. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (“[T]here is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty.”) At the same time, there are more “narrowly focused” means to ensure Petitioner-Plaintiffs’ appearance in legal proceedings, which do not subject them to the dangers of detention, for example, supervised or conditional release would suffice to meet the government’s interest without subjecting Petitioner-Plaintiffs to severe danger.
176. The Government also cannot establish that it has a compelling interest in keeping Petitioner-Plaintiffs detained. Each Plaintiff has a severe medical ailment and is immunocompromised. Given that the only established method to protect oneself from the virus is to self-isolate, the likelihood of a post-release danger to the community from elderly or ill persons is infinitesimal and cannot justify the maximal deprivation of liberty – detention – with a resulting risk of serious illness or death
177. Under normal circumstances, at least some of the Petitioner-Plaintiffs would be able to seek either initial or changed-circumstances bond hearings in the immigration courts, see 8 U.S.C. § 1226(a)(1)-(2), or could petition for release on parole. 8 U.S.C. § 1182(d)(5)(A).
47

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 51 of 63
However, these are not normal circumstances. As alleged supra, because of the circumstances generated by the pandemic Petitioner-Plaintiffs’ access to counsel is sparse, if at all, and the immigration courts charged with reviewing challenges to detention are struggling to manage caseloads, hold timely hearings, and consider relevant evidence. This is a quintessential procedural due process violation. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”).
178. The bond, parole and removal proceedings may be civil in nature, but they have the highest possible stakes for Plaintiffs-Petitioners. Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (“The severity of deportation. . . underscores how critical it is” for immigrants to have effective counsel). The remedy for the deprivation of Petitioner-Plaintiffs’ procedural due process rights is outright release, if not release pending future bond hearings and parole considerations once immigration proceedings regain regularity.
D. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention Conditions as Law and Equity Requires. 179. Petitioner-Plaintiffs seek relief under the federal habeas statute, 28 U.S.C. § 2241,
which is itself infused with long-standing common law equitable principles. See 28 U.S.C. § 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws or treaties of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
180. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic
48

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 52 of 63
remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
181. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention – what is often referred to as the “historical core” of habeas – and for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners). See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention.”).
182. A court is fully empowered to remediate the particular illegality here – an outbreak of lethal and unavoidable virus that threatens petitioners and violates their constitutional rights to be free from arbitrary and punitive detention – by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291.
E. ICE’s Restrictions on Access to Counsel Violate the Fifth Amendment. 183. People detained by ICE are entitled to meaningful access to counsel. Courts
consistently interpret the Due Process Clause of the Fifth Amendment to require people in removal
49

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 53 of 63
proceedings to have access to counsel at full and fair hearings. See, e.g., Barthold v. U.S. Immigration & Naturalization Service, 517 U.S. 689 (1975); Nunez v. Boldin, 537 F. Supp. 578 (N.D. Tex. 1982).
184. ICE’s restrictions on access to counsel violate Petitioner-Plaintiffs’ rights to counsel under the Due Process Clause. Given the severity and projected length of the pandemic and the increasing likelihood of risk to both detained people and their visitors, Petitioner-Plaintiffs’ rights to meet with counsel and prepare for their cases cannot be guaranteed while they are detained, and they must be released.
F. ICE’s Failure to Follow Its Own Procedures is Arbitrary and Capricious in Violation of the Administrative Procedure Act. 185. ICE is required to adhere to its own policies and internal operating procedures,
particularly “where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.” Morton v. Ruiz, 415 U.S. 199, 235 (1974); see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Richardson v. Joslin, 501, F. 3d 415, 418 (2007); Church of Scientology of Cal. v. United States, 920 F.2d 1481, 1487 (9th Cir. 1990) (“Pursuant to the Accardi doctrine, an administrative agency is required to adhere to its own internal operating procedures.”)
186. Pursuant to this mandate, ICE is required to comply with each provision of the PBNDS, including those requiring compliance with CDC guidelines and with access to counsel provisions. They have failed to do so despite the grave risk to the lives of Petitioner-Plaintiffs and others who are detained.
187. It is arbitrary and capricious for ICE to disregard the mandates of the PBNDS and those issued by the CDC. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)
50

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 54 of 63
(“An agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books”).
188. Likewise, ICE’s restrictions on access to counsel conflict with its own regulations and the PBNDS, and are similarly arbitrary and capricious. Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1062, 1079 (D. Or. 2018).
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS 189. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
190. The Due Process Clause of the Fifth Amendment guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires that the government have a constitutionally adequate, non-punitive purpose for continued detention. These requirements are violated when a condition of detention is not reasonably related to a legitimate government objective and when government officials are deliberately indifferent to a substantial risk of harm to the detainee.
191. Defendants continue to detain Petitioner-Plaintiffs, whose underlying health conditions render them particularly vulnerable to contracting COVID-19, spreading it to others, and suffering serious injury or death as a result.
192. The conditions of detention in the LaSalle, Winn, Richwood, Adams and Etowah facilities increase Petitioner-Plaintiffs’ risk of contracting COVID-19. There have been cases of COVID-19 reported in the parishes or counties where each of these facilities are located. Defendants have not, and could not possibly, implement social distancing measures that are
51

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 55 of 63
required to prevent the rapid spread of COVID-19 in these facilities. Defendants also have not implemented any adequate hygiene practices as recommended by the CDC.
193. Defendants have failed in their obligation to adequately protect Petitioner-Plaintiffs from exposure to COVID-19. This puts Petitioner-Plaintiffs at a substantial risk of serious illness or death.
194. Defendants know about the prevalence of COVID-19 in Louisiana, and the risk that it poses to individuals with certain underlying conditions. Under these circumstances, PetitionerPlaintiffs’ continued detention by Defendants amounts to deliberate indifference to a substantial risk of harm to Petitioner-Plaintiffs.
195. Defendants’ exposure of Petitioner-Plaintiffs to this substantial risk of serious illness or death amounts to punishment.
196. Petitioner-Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate government purpose. Petitioner-Plaintiffs do not pose a danger or a flight risk, and these considerations alone are insufficient to countervail the severe risk of severe illness or even death that Petitioner-Plaintiffs face if they are not released.
197. Absent judicial relief in the form of release from detention, Petitioner-Plaintiffs are suffering and will continue to suffer irreparable harm.
SECOND CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS
198. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
199. The Due Process Clause of the Fifth Amendment guarantees persons in immigration detention the fundamental right to freedom from confinement. To justify a denial of
52

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 56 of 63
this right, there must be a compelling governmental interest that is narrowly tailored, and detainees must be afforded adequate procedures that ensure against erroneous confinement.
200. The weight of the government’s interests in ensuring a lack of flight risk and preventing danger to the community is severely diminished during the pendency of the pandemic. Further, mandating Petitioner-Plaintiffs’ continued detention at risk of death during a global pandemic is grossly disproportionate to the government’s interests. Furthermore, it is not sufficiently tailored, fails to account for reasonable alternatives, and denies Petitioner-Plaintiffs the right to be meaningfully heard.
201. To ensure adequate procedural protections exist, the extraordinary circumstances alleged justify this Court’s intervention to order Petitioner-Plaintiffs’ outright release during the pendency of the COVID-19 crisis, or at least release until immigrations proceedings regain regularity, at which point it may order bond hearings and requests for parole.
202. Absent judicial relief in the form of release from detention, Petitioner-Plaintiffs are suffering and will continue to suffer irreparable harm.
THIRD CLAIM FOR RELIEF: HABEAS AUTHORITY TO ORDER RELEASE FROM UNLAWFUL DETENTION
203. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
204. The Court has broad, equitable authority under the habeas statute, 28 USC 2241, 2243 and the common law, to dispose of Petitioners-Plaintiffs’ cases as law and justice require, based on the unique facts and circumstances of their cases, in order to remedy Petitioners’ unlawful conditions of detention.
53

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 57 of 63
205. The Court should exercise this authority to grant Petitioner-Plaintiffs’ habeas corpus petition and to fashion any and all additional relief, necessary to effectuate PetitionerPlaintiffs’ expeditious release from unlawful detention. In the absence of such relief, PetitionerPlaintiffs are suffering and will continue to suffer irreparable harm.
FOURTH CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO DUE PROCESS (RIGHT TO COUNSEL
AND TO A FULL AND FAIR HEARING) 206. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 207. The Due Process Clause of the Fifth Amendment guarantees the right to the effective assistance of counsel in their removal proceedings at no cost to the government and to a full and fair hearing. 208. Petitioner-Plaintiffs are represented by counsel in removal proceedings. Defendants’ policies, practices, and omissions have created substantial barriers to PetitionerPlaintiffs efforts to access counsel and prepare their claims. 209. Petitioner-Plaintiffs have a substantial interest in avoiding prolonged detention during a highly infectious pandemic as well as in ultimately prevailing in their bond, parole, and removal proceedings. 210. Petitioner-Plaintiffs have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
FIFTH CLAIM FOR RELIEF VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT (ACCARDI DOCTRINE - FAILURE TO ABIDE BY AGENCY POLICIES)
54

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 58 of 63
211. Petitioner-Plaintiffs realleage and incorporate by reference the foregoing paragraphs.
212. The Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., authorizes suits by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702.
213. ICE’s PBNDS apply at all ICE dedicated civil detention facilities, including LaSalle, Adams, Winn, Richwood and Etowah. The PBNDS set mandates for medical care and require detention facilities to adhere to the guidelines and recommendations of the CDC for prevention and control of infectious diseases.
214. Despite the outbreak worldwide of a highly contagious coronavirus, Defendants have utterly failed to abide by CDC Guidelines, congregating between 66 and 100 people in one space for most of the day where they share minimal toilet, sink, and telephone access, failing to provide adequate cleaning of surfaces, failing to provide sufficient soap to prevent the spread of infection.
215. The PBNDS are also the primary mechanism through which Defendants execute their duty to ensure constitutional access to counsel for the thousands of detained immigrants across the United States. They strongly encourage contact visitation, and they require that meetings between detained people and counsel be confidential, be permitted for at least eight hours on weekdays and four hours on weekend days, and provide for the exchange of documents even when contact visitation rooms are unavailable.
216. Defendants have used the COVID-19 crisis to erect insurmountable barriers to access to counsel, barring counsel from entering facilities if they do not have their own Personal Protective Equipment, and providing insufficient access to telephone and VTC.
55

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 59 of 63
217. An agency’s unexplained failure to follow its own rules for control and prevention of infectious disease and for access to counsel violates the APA. 5 U.S.C. § 706(2)(A); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
218. Petitioner-Plaintiffs have suffered and will continue suffer irreparable injury as a result of Defendants’ final agency actions, and they are entitled to injunctive relief to avoid any further injury.
SIXTH CLAIM FOR RELIEF VIOLATION OF THE REHABILITATION ACT (FAILURE TO PROVIDE REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES) 219. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 220. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a). 221. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
56

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 60 of 63
222. The removal process is a benefit administered by DHS and Petitioner-Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Petitioner-Plaintiffs receive substantial federal financial assistance.
223. Petitioner-Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
224. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Petitioner-Plaintiffs from participating in the removal process by reason of their disability.
225. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Petitioner-Plaintiffs from participating in the removal process by reason of their disability.
226. By failing to provide Petitioner-Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Petitioner-Plaintiffs.
227. The only available “reasonable accommodation” that would mitigate PetitionerPlaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a fundamental alteration in the removal process or the programs and activities of the detention center.
228. Defendants’ ongoing detention of Petitioner-Plaintiffs constitutes discrimination because it is either disparate treatment of, or at the very least has a disparate impact on, people
57

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 61 of 63
with qualifying disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
229. For these reasons, Defendants’ ongoing detention of Petitioner-Plaintiffs violates the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Petitioner-Plaintiffs request that this Court:
a. Issue a writ of habeas corpus and order Petitioner-Plaintiffs’ immediate release or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
b. In the alternative, issue a temporary restraining order or preliminary and permanent injunctive relief ordering Defendants to immediately release Petitioner-Plaintiffs or place them in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
c. Declare that Defendants’ continued civil detention of individuals at increased risk for severe illness, including all people over the age of 50 and persons of any age with underlying medical conditions that increase the risk of serious illness or death upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act;
d. Award Petitioner-Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees 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 by law; and
58

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 62 of 63

e. proper.

Grant Petitioner-Plaintiffs any other and further relief this Court deems just and

Dated: April 1, 2020 New Orleans, Louisiana

Respectfully submitted,
/s/ Matthew S. Vogel Matthew S. Vogel, La. Bar No. 35363 matt@nipnlg.org Sirine Shebaya* sirine@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876
Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTSS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Andrew Free* Andrew@ImmigrantCivilRights.com LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 844.321.3221 x.1
Jeremy Jong** jermjong@gmail.com 3527 Banks Street
59

Case 2:20-cv-01093 Document 1 Filed 04/01/20 Page 63 of 63 New Orleans, LA 70119 504.475.6728 William P. Quigley, La Bar No. 07769 Quigley77@gmail.com LOYOLA LAW CLINIC 7214 St. Charles Avenue New Orleans, LA 70118 504.710.3074 Counsel for Petitioner-Plaintiffs *pro hac vice applications forthcoming ** admission application forthcoming
60

 
 Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 1 of 16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TATALU HELEN DADA, ET AL.

*

CASE NO. 20-1093

vs.

*

SECT. T(4)

DIANNE WITTE, in her official capacity * as Interim New Orleans Field Office Director, U.S. Immigration and Customs * Enforcement, ET AL.

JUDGE GUIDRY MAG. ROBY

MEMORANDUM IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER I. Introduction and summary of the argument MAY IT PLEASE THE COURT: Petitioners are detainees of U.S. Immigration and Customs Enforcement (ICE). They seek a writ of habeas corpus under 28 U.S.C. § 2241(a) and a temporary restraining order (TRO) for their immediate release from detention centers located in three federal judicial districts, spread across three states, and assigned to two federal circuit courts of appeals. The federal defendants—ICE, Dianne Witte, and Matthew Albence—file this opposition.1 The Court should deny the TRO and dismiss this case in its entirety for several reasons. First, none of the petitioners or detention facilities are located within the territorial jurisdiction of the Eastern District of Louisiana. This Court, therefore, is not the proper venue for petitioners to seek habeas relief. Second, petitioners lack indispensable elements of Article III standing— namely, a concrete injury-in-fact redressable through a favorable decision. Third, petitioners have

1

Some of the individual warden-defendants are ICE private contractors. The purely legal

arguments in this opposition memorandum apply equally to them.

1

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 2 of 16

not demonstrated a likelihood of success on the merits of their due-process claims. Specifically, their allegations regarding the conditions of their confinement are not the proper subject of habeas relief, nor do the conditions constitute deliberate indifference to petitioners’ legitimate medical needs. Fourth, petitioners have not demonstrated any irreparable injuries. Finally, the public interest and balance of the equities in this instance favor deference to the executive agency statutorily vested with enforcement of federal law. That is, judicial intervention in these novel circumstances based on petitioners’ speculative showing could create a slippery slope by which every civil or criminal detainee in a state or federal facility could conceivably invoke COVID-19 as a means to secure immediate release.
For these reasons, further explained below, the Court should deny petitioners’ motion for a TRO and dismiss their petition in its entirety. II. Facts and procedural background
Petitioners are 17 individuals currently held in the following immigration detention facilities: LaSalle ICE Processing Center in Jena, Louisiana; Richwood Correctional Center in Richwood, Louisiana; Winn Correctional Center in Winnfield, Louisiana; Adams Correctional Center in Natchez, Mississippi; and Etowah County Detention Center in Gadsden, Alabama. Rec. Doc. 1 at ¶ 1.2 LaSalle, Richwood, and Winn are located in parishes within the Western District of Louisiana. 28 U.S.C. § 98(c). Adams is located in the Southern District of Mississippi, 28 U.S.C. § 104(b)(4), and Etowah is in the Northern District of Alabama. 28 U.S.C. § 81(a)(6).
Petitioners allege that they have a variety of medical conditions and co-morbidities that place them at an increased risk of contracting COVID-19 in a detention facility. Rec. Docs. 1 & 2-

2

None of the petitioners has disputed in these proceedings the legality of his or her detention. Rec.

Docs. 1 & 2-1. For additional detail on the circumstances leading to each detention, see Ex. 1 at ¶¶ 20–36 (declaration

of Michel Nelson, ICE Assistant Field Office Director, New Orleans Field Office).

2

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 3 of 16
1 at pp. 4–6. They allege six claims for alleged violations of: substantive and procedural due process rights; unlawful detention under the federal habeas statute, 28 U.S.C. § 2241; Fifth Amendment right to counsel and a fair hearing; the Administrative Procedure Act; and the Rehabilitation Act. Rec. Doc. 1 at ¶¶ 189–229. Along with their petition for habeas relief, Petitioners filed a motion for a TRO seeking immediate release from detention. Rec. Doc. 2. Their memorandum in support focuses on the likelihood of success on their constitutional claims for alleged deliberate indifference and due-process violations. Rec. Doc. 2-1 at pp. 13–21. III. Argument
A. Standard of review A petitioner seeking a temporary restraining order under Fed. R. Civ. P. 65(b) must satisfy the same four-factor test that governs the issuance of a preliminary injunction under Rule 65(a). God’s Chariot, L.P. v. City of Euless, 2003 WL 21640622, at *1 (N.D. Tex. July 8, 2003). These four factors are: (1) a substantial likelihood that petitioners will eventually prevail on the merits; (2) a showing that the petitioners will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the petitioners outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Hardin v. Houston Chronicle Pub. Co., 572 F.2d 1106, 1107 (5th Cir. 1978); Canal Auth. of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A preliminary injunction is an extraordinary remedy. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). It should only be granted if the movant has clearly carried the burden of persuasion on all four prerequisites. Id. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Id. (citing State of Texas v. Seatrain Inter. S.A., 518 F.2d 175, 179 (5th Cir. 1975)).
3

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 4 of 16

B. This Court lacks jurisdiction to issue habeas relief to detainees held outside of the Eastern District of Louisiana.
The federal habeas corpus statute provides that “[w]rits of habeas corpus may be granted by . . . the district courts . . . within their respective jurisdictions.” 28 U.S.C. § 2241(a). The Fifth Circuit has explained that “[t]he only district that may consider a habeas corpus challenge to present physical confinement pursuant to § 2241 is the district in which the prisoner is confined.” United States v. McPhearson, 451 F. App’x 384, 387 (5th Cir. 2011) (citing, inter alia, Rumsfeld v. Padilla, 542 U.S. 426, 442–43 (2004)).
In Padilla, the Supreme Court made clear that in “core” habeas petitions—i.e., petitions like the present one that challenges petitioners’ present physical confinement—the petitioner must name his warden as a respondent and file the petition in the district of confinement. Padilla, 542 U.S. at 437. In embracing the “immediate custodian” rule,3 the Supreme Court explained that limiting a district court’s jurisdiction4 to issue a writ to custodians within their jurisdiction “serves the important purpose of preventing forum shopping by habeas petitioners.” Id. at 447 (the result of disregarding the immediate custodian rule “would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago”). In fact, Padilla specifically rejected what petitioners currently seek from the Court—that is, the “possibility that

3

In adopting the “immediate custodian” rule, the Supreme Court rejected the “legal reality

of control” standard and held that legal control does not determine the proper respondent in a habeas petition

that challenges present physical confinement. See Padilla, 542 U.S. at 437–39; compare id. at 439 (“In

challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory

official who exercises legal control, is the proper respondent.”), with Rec. Doc. 1 at ¶ 21.

4

Padilla clarified that “jurisdiction” in the habeas context refers to the territorial limits

referenced in § 2241(a), and not to subject matter. Padilla, 542 U.S. at 434 n.7. Like personal jurisdiction

or venue, habeas “jurisdiction” is subject to waiver. Id. at 451–52 (Kennedy, J., concurring). Responding

defendants in this matter, of course, presently preserve objections to territorial jurisdiction, venue, and lack

of proper service. See Fed. R. Civ. P. 12(b)(2)–(5).

4

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 5 of 16

every judge anywhere could issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.” Id. at 442 (cleaned up).5
While Padilla didn’t arise from immigration proceedings, this court, relying on Fifth Circuit authority, has consistently applied the territorial-jurisdiction rule to immigrant detainees. See Zurawsky v. Ashcroft, #03-439, 2003 WL 21088092, at *1 (E.D. La. May 8, 2003) (“The record indicates that at the time of the filing of the petition and at present, Plaintiff has been detained at the INS facility in Oakdale, Louisiana. Oakdale, Louisiana is located within the jurisdiction of the United States District Court for the Western District of Louisiana. Thus, this Court lacks jurisdiction to preside over the above-captioned matter. Plaintiff’s § 2241 petition should be filed in the Western District of Louisiana.”); Santos v. U.S. I.N.S., #98-2247, 1998 WL 774175, at *1 (E.D. La. Oct. 30, 1998) (“Petitioner is incarcerated within the geographical area comprising the United States District Court for the Western District of Louisiana. Because . . . he is not incarcerated within the geographical confines of this district, the Eastern District is not a proper venue for the adjudication of habeas claims from this petitioner.”); McFarlane v. I.N.S., #92-0709, 1992 WL 161135, at *2 (E.D. La. June 23, 1992) (“This complaint presents similar claims about alleged violations of detainee’s rights stemming from the very fact of their detention and, for this reason, the court finds the Western District of Louisiana to be a more appropriate forum to consider such claims.”); Nguyen v. I.N.S., #92-1116, 1992 WL 73343, at *1 (E.D. La. Apr. 2, 1992) (“INS presently detains [petitioner] in Oakdale, Louisiana. His person (over which

5

Statutes and precedent briefly aside, it is also a matter of judicial comity to defer habeas

decisions to the judges with territorial jurisdiction over the respective petitioner. By illustration, petitioners

in this suit would have the Court intrude upon not one, but three judicial districts in the absence of territorial

jurisdiction over even just one of the 17 petitioners. Further illustrating the incongruity of petitioners’

request, no judge in either the Fifth or Eleventh Circuit Courts of Appeals, which cover multiple states,

would have sufficient territorial jurisdiction to entertain the entirety of petitioners’ present case. See 28

U.S.C. §§ 2241(a)–(b).

5

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 6 of 16

habeas corpus jurisdiction exists), therefore, is not held within this district nor did the proceedings of which he complains apparently take place here.***The court, therefore, finds [the WDLA] to be the proper venue for this petition to be considered . . .”).
Since there isn’t a single judicial district with territorial jurisdiction over all 17 petitioners, the Court should dismiss, rather than transfer,6 this matter without prejudice to allow petitioners to refile in the three respective judicial districts with proper territorial jurisdiction. See 28 U.S.C. § 1406(a) (authorizing transfer of a “case”); cf., Smiley v. Reno, 131 F. Supp. 2d 839, 841 (W.D. La. 2001) (“The United States Code provisions addressing venue and related transfers apply to ‘a civil action’, ‘civil actions’, ‘a case’, ‘proceedings’, or ‘any civil action’, not to a given claim, a single defendant, or a specific group of defendants.”).7 Further, as the Court lacks jurisdiction to order the relief petitioners seek in their TRO (i.e., immediate release from detention), no further analysis of the four factors for injunctive relief is necessary. Nonetheless, it’s included below in an abundance of caution.
C. Petitioners lack Article III standing for the relief they seek. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in the case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The “irreducible constitutional minimum of standing” contains three requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must have suffered an

6

If the Court was inclined to transfer the matter, the WDLA is the most likely landing place,

since 11 of the 17 petitioners are detained there. Before doing so, however, the Court would first need to

sever and drop the misjoined petitioners located in the SDMS and NDAL. See Fed. R. Civ. P. 21. Dismissal

is certainly the more efficient course.

7

Even if petitioners had an arguable claim to proper territorial jurisdiction and venue in this

Court, severance and transfers could still be appropriate under 28 U.S.C. § 1404(a), the codification of the

forum non conveniens doctrine. See, e.g., McFarlane, 1992 WL 161135, at *2.

6

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 7 of 16
“injury in fact”—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Id. Second, the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the Court.” Id. Third, it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision.” Id. at 560–61 (internal citations omitted).
Petitioners have not shown an injury in fact. To establish this, petitioners must show that they suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). To be “particularized” the injury “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’” Spokeo, Inc, 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it must actually exist[,]” that is, it must be “real,” and not “abstract.” Id. While “the risk of real harm” may, in some circumstances, be sufficiently concrete, “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending,’” Lujan, 504 U.S. at 568. “For a threatened future injury to satisfy the imminence requirement, there must be at least a ‘substantial risk’ that the injury will occur.” Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019).
Petitioners’ alleged harm—that their continued detentions increase the risk of contracting COVID-19—is speculative. ICE has outlined detailed procedures for the screening, management, and treatment of detainees’ potential exposure to COVID-19. See Ex. 1 at ¶¶ 38–45 (declaration of Michel Nelson, ICE Assistant Field Office Director, New Orleans Field Office). Importantly,
7

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 8 of 16
ICE has also established that there are no current cases of COVID-19 in the five detention facilities listed in petitioners’ pleadings. Id. at ¶ 37. Thus, petitioners’ claims of future injury are hypothetical; they are not entitled to immediate release from detention based on a conjectural injury that they have not suffered. See Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (holding that an injunction is unavailable absent “any real or immediate threat that the plaintiff will be wronged”). Moreover, even if COVID-19 is found in a detention facility, petitioners have not alleged—and cannot prove—that defendants are unprepared to respond to that contingency. To the contrary, ICE already screens its detainees, and has procedures in place to quarantine, test, and, if necessary, transfer detainees with COVID-19 symptoms or diagnoses. Ex. 1 at ¶¶ 41–42.
Even assuming injury-in-fact, petitioners’ claims lack redressability. “The redressability requirement limits the relief that a plaintiff may seek to that which is likely to remedy the plaintiff’s alleged injuries.” Stringer, 942 F.3d at 720. For standing purpose, a plaintiff’s injury is redressable where there is “a substantial likelihood that the requested relief will remedy the alleged injury.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). Here, Petitioners’ desired relief—release from detention—will not prevent them from contracting COVID-19, nor will it ameliorate the various medical conditions that heighten their risks if they contract COVID-19. Put another way, remaining in federal detention doesn’t ensure petitioners’ exposure to COVID-19, and releasing them to the community doesn’t give them immunity from it.
D. Petitioners haven’t satisfied the four-part test for issuance of a TRO. 1. Unlikelihood of success on the merits
An “absence of likelihood of success on the merits is sufficient to make the district court’s grant of a preliminary injunction improvident as a matter of law.” Lake Charles Diesel, Inc. v.
8

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 9 of 16
Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003). To assess the likelihood of success on the merits, the Court looks to standards provided by the substantive law. Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir. 2011).
And substantive law standards aren’t in petitioners’ favor here. At bottom, this suit concerns the conditions of petitioners’ confinements in various detention centers. See Rec. Doc. 1 at ¶¶ 6, 14, 105–12, & 132–37. Assuming the truth of these allegations for the sake of argument, a habeas action isn’t the appropriate vehicle to deliver them to the Court. The “sole function” of habeas is to “grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976); Villela v. Hinojosa, 730 F. Supp. 2d 624, 627 (W.D. Tex. 2010). In other words, “[h]abeas petitions can only ‘grant relief from unlawful imprisonment or custody’ and cannot be used to challenge ‘conditions of confinement.’” Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. Oct. 15, 2019) (citing Schipke v. Van Buren, 239 F. App’x 85, 85–86 (5th Cir. 2007)).
The Fifth Circuit, and other district courts within this Circuit, have long recognized that habeas actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.” See Schipke, 239 F. App’x at 85–86; Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle [is] that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas petition).
9

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 10 of 16
U.S. District Judge Fernando Rodriguez in the Southern District of Texas recently denied an immigrant detainee’s similarly styled habeas motion based on fear of potential COVID-19 exposure. See Sacal-Micha v. Longoria, #1:20-cv-37, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020). Sacal-Micha correctly found that allegations related to the inadequacy of COVID-19 mitigation and avoidance measures “are part and parcel of the conditions in which the facility maintains custody over detainees.” Id. at *4. Surveying Fifth Circuit precedent, Sacal-Micha concluded that “[d]istrict courts have . . . den[ied] a habeas petition based solely on alleged inadequate conditions of incarceration.” Id. Therefore, even if this Court were inclined to find the existence of civil-rights violations in the petitioners’ conditions of confinement, release from custody under a § 2241(a) habeas writ wouldn’t be the appropriate remedy.
And the Court won’t find any constitutional violations on the record before it. As petitioners are civil detainees, their conditions of confinement claims are, like pretrial detainees, governed by the due-process clause. See Hare v. City of Corinth, 74 F.3d 633, 638-639 (5th Cir. 1996) (en banc); see also Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) (evaluating conditions of confinement claim of civil detainee under Fifth Amendment). In Hare, the Fifth Circuit created two standards for conditions-of-confinement claims depending on the nature of the allegation. The court held “that the episodic act or omission of a state jail official does not violate a [civil] detainee’s due process right to medical care . . . unless the official acted or failed to act with subjective deliberate indifference.” Alternatively, “[c]onstitutional attacks on general conditions, practices, rules, or restrictions of pretrial confinement,” or “jail condition cases,” are governed by the reasonable relation test articulated in Bell v. Wolfish, 441 U.S. 520 (1979). The Supreme Court held in Bell that so long as the challenged condition is “reasonably related to a legitimate
10

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 11 of 16
governmental objective” it passes constitutional muster. Id. at 539. Under either standard, petitioners’ claims fail.
In defining the deliberate-indifference standard, the Supreme Court clarified in Helling v. McKinney that while “accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the [constitution], ‘deliberate indifference to serious medical needs of prisoners’ violates the [constitution] because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” 509 U.S. 25, 32 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“Deliberate indifference is an extremely high standard.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “Deliberate indifference in the context of failure to provide reasonable medical care means that: (1) the prison officials were aware of facts from which an inference of substantial risk of serious harm could be drawn; (2) the officials actually drew that inference; and (3) the officials’ response indicated that they subjectively intended that harm occur.” Thompson v. Upshur County., Texas, 245 F.3d 447, 458–59 (5th Cir. 2001). A prisoner claiming deliberate indifference must allege that government officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Davidson v. Texas Dept. of Criminal Justice, 91 F. App’x 963, 965 (5th Cir. 2004). Further, “deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.” See Thompson, 245 F.3d at 459–60.
Petitioners in this case have not demonstrated that the measures ICE has implemented to combat COVID-19 in its detention centers are so wanton as to constitute deliberate indifference to the medical needs of its detainees. See Ex. 1 at ¶¶ 38–45. Petitioners’ failure of proof is
11

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 12 of 16
unsurprising since there are no confirmed COVID-19 cases in the detention centers identified in
this suit. Ex. 1 at ¶ 37.
As in Sacal-Micha, petitioners instead rely on “conclusory arguments based on general
articles regarding the highly-contagious nature of COVID-19 and its impact on the elderly and
individuals with certain underlying medical conditions.” Id. at *5. The declarations of petitioners’
medical experts, Drs. Bazzaro and Meyer, simply regurgitate what is already well known through
press coverage—namely, COVID-19 is a serious pandemic that will tax limited medical resources
and disproportionally affect individuals with pre-existing risk factors. See Rec. Docs. 2-21 & 2-
22. Accepting this as true, conclusions from a court in the Eastern District of California considering
a habeas motion for a cancer patient at heightened risk for COVID-19 are instructive and equally
applicable here:
[A]lthough the COVID-19 situation is an extraordinary one for the population at large in this country, including prisoners, and without diminishing in the least the fact that petitioner is part of an especially at-risk COVID-19 population, petitioner has not shown that prison authorities are unable or unwilling to address this serious problem within prisons, or that petitioner is unable to take the general, protective measures applicable to all as of yet unafflicted persons, i.e., wash hands frequently, avoid touching the face and so forth. Moreover, prison authorities may be able to isolate highly at-risk prisoners, such as petitioner, more easily than isolation or “social distancing” is achieved in the general population, e.g., housing in administrative segregation, partial lockdowns or transfers. Prisons are certainly able to order their afflicted employees to stay at home, and can probably, more easily find testing opportunities for their essential employees than is yet possible for the general population.
Peterson v. Diaz, #2:19-cv-01480, 2020 WL 1640008, at *2 (E.D. Cal. Apr. 2, 2020); see also
Patel v. Barr, #2:20-cv-488, (W.D. Wash. April 2, 2020), Rec. Doc. 9 at p. 9 (denying TRO and
habeas release for COVID-19 based on a lack of likelihood of success on Fifth Amendment claim).
In accord with Peterson’s suggestions, ICE has shown that it has taken appropriate steps
to limit COVID-19 transmission in its facilities, identify detainees who might have had exposure
12

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 13 of 16

to COVID-19, and, most importantly, timely treat those who are ill. Ex. 1 at ¶¶ 38–45.8 In sum, continued detention during the COVID-19 pandemic does not constitute deliberate indifference to petitioners’ health, well-being, and current medical needs.9
2. Absence of irreparable harm The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). “To seek injunctive relief, the plaintiff must show a real and immediate threat of future or continuing injury apart from any past injury.” Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014). “Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” Hurley v. Gunnels, 41 F.3d 662 (5th Cir. 1994) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). As stated above, Petitioners argue that release from the detention centers will minimize their heightened risk of contracting COVID-19 due to underlying medical conditions. As discussed supra, Sect. III.C., however, this assertion is speculative both as to the imminence of injury/harm in detention and the future effectiveness petitioners’ prayed-for mitigation measure (i.e., release to

8

In fact, none of the detention facilities identified in petitioners’ filings is at or near

maximum capacity, and several are not even half-full. Ex. 1 at ¶ 6 (Lasalle 82%), ¶ 9 (Richwood 24%), ¶

12 (Winn 50%), ¶ 15 (Adams 41%), and ¶ 18 (Etowah 35%).

9

Assuming petitioners’ claim is characterized as a jail-condition case governed by Bell, it

still fails as detention is reasonably related to the Government’s legitimate interest in pre-order detention

of aliens to prevent absconcion and, in the cases of criminal aliens, to protect the community. In the

immigration context, the Supreme Court has consistently upheld the constitutionality of detention, citing

the Government’s legitimate interest in protecting the public and preventing aliens from absconding into

the United States and never appearing for their removal proceedings. See Jennings v. Rodriguez, 138 S. Ct.

830, 836 (2018); Demore, 538 U.S. at 520–22; Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001). Nor is

detention pending removal an excessive means of achieving those interests. The Supreme Court for over a

century has affirmed detention as a “constitutionally valid aspect of the deportation process.” Demore, 538

U.S. at 523 (listing cases).

13

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 14 of 16
the community). See Dawson v. Asher, #20-0409, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (denying an immigrant detainee habeas relief for a COVID-19 risk and finding “[t]he ‘possibility’ of harm is insufficient to warrant the extraordinary relief of a TRO. There is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur.”) (internal citation omitted).
Whether viewed as an element of Article III standing or for injunctive relief under Fed. R. Civ. P. 65(b), the absence of irreparable injury requires denial of petitioners’ TRO.
3. The equities and public interests in respondents’ favor When, as here, the government is a party, the third and fourth injunction factors—the balance of equities and public interests—merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). It is well-settled that the public interest in enforcement of 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.”); see also Nken, 556 U.S. at 435 (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.”). Petitioners’ claims also have no logical backstop. That is to say, if the Court releases these 17 petitioners from detention, what grounds justify keeping other civil detainees or criminal arrestees in continued custody during the COVID-19 pandemic? Indeed, petitioners’ initial pleading requests a general declaratory finding from the Court that would cover many non-parties. See Rec. Doc. 1 at p. 58 (seeking a declaration that detaining “all people over the age of 50 and persons of any age with underlying medical conditions that increase the risk of serious illness or
14

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 15 of 16
death upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act”). Sacal-Micha, supra, crystallized this legitimate governmental concern: “[A]ccepting Sacal’s reasoning would logically require the release of all individuals currently detained who are elderly or suffer from certain underlying medical conditions. The law does not require such a generalized result.” Sacal-Micha at *5; see also United States v. Gabelman, #2:20-cr-19, 2020 WL 1430378, at *1 (D. Nev. Mar. 23, 2020) (“The court acknowledges that the spread of COVID-19 may be acutely possible in the penological context, but the court cannot release every detainee at risk of catching COVID-19 because the court would be obligated to release every detainee.”).
The public interests in this case are best served by allowing the orderly medical processes and protocols implemented by government professionals. See Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982) (urging judicial deference and finding presumption of validity regarding decisions of medical professionals concerning conditions of confinement). ICE has a conscientious, detailed, humane, and medically up-to-date process to address, mitigate, and treat any potential COVID-19 occurrences in its facilities. Ex. 1 at ¶¶ 38–45.
Because petitioners cannot show that the balance of hardships and public interests tip in their favor, the Court should deny the motion for a TRO. IV. Conclusion
Petitioners’ case doesn’t belong in this Court. Even if it did, immediate release from detention under a writ of habeas corpus and TRO isn’t justified in the absence of Article III standing, a likelihood of success on the merits, irreparable injury, or public interests in petitioners’
15

Case 2:20-cv-01093-GGG-KWR Document 7 Filed 04/03/20 Page 16 of 16
favor. Accordingly, the Court should deny petitioners’ motion for a TRO and dismiss this case in its entirety.10
Respectfully submitted, PETER G. STRASSER UNITED STATES ATTORNEY s/Peter M. Mansfield PETER M. MANSFIELD (# 28671) Assistant United States Attorney Chief, Civil Division 650 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Office: (504) 680-3047 Cell: (504) 421-2354 Facsimile: (504) 680-3184 Peter.Mansfield@usdoj.gov
10 If the Court is inclined to exercise jurisdiction, find for petitioners on the merits, and order an immediate release, respondents request that the Court order petitioners to comply with applicable national, state, and local guidance to stay at home, shelter in place, and practice social distancing. Likewise, the Court should also order that, until returned to ICE detention, the petitioners be placed on home detention given that the individual was originally detained based on criminal history, flight risk, or pending deportation. See Ex. 1 at ¶¶ 20–36.
16

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT OR THE EASTERN DISTRICT OF LOUISIANA

TATALU HELEN DADA, ET AL.

CASE NO. 20-1093

vs.
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement, ET AL.

SECT. T(4)
Judge Guidry Mag. Roby

DECLARATION OF MICHAEL NELSON, ASSISTANT FIELD OFFICE DIRECTOR, NEW ORLEANS FIELD OFFICE
I, Michael Nelson, hereby make the following declaration with respect to the above-captioned matter: 1. I am the Assistant Field Office Director, New Orleans Field Office, employed by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO). In this capacity, I manage ERO personnel and provide oversight over ERO operations in Alabama, including the Etowah County Detention Center (Etowah), Gadsden, Alabama. In an acting capacity, I also provide oversight over a number of detention facilities within the New Orleans Field Office, including the LaSalle ICE Processing Center (LIPC), Jena, Louisiana, the Richwood Correctional Center (Richwood), Richwood, Louisiana, the Winn Correctional Center (Winn), Winnfield, Louisiana, and the Adams County Detention Center (ACDC), Natchez, Mississippi. I have been employed by the former Immigration and Naturalization Service (INS) and ICE since 2002. 2. This declaration is based upon knowledge and information obtained from various records and systems maintained by DHS in the regular course of business. I provide this declaration based
1

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 2 of 23
on the best of my knowledge, information, belief, and reasonable inquiry for the above captioned case. 3. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. ICE detains people to secure their presence both for immigration proceedings and their removal, with a special focus on those who represent a risk to public safety, or for whom detention is mandatory by law. 4. The LIPC is a private detention center run by The GEO Group, Inc. (GEO). GEO is an independent contractor that provides the facility, management, personnel and services for the 24hour supervision of the immigrant detainees in ICE custody at the LIPC. 5. Medical care at the LIPC is overseen by the ICE Health Services Corps (IHSC), which provides medical services through the combination of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals. 6. The LIPC has the capacity to house 1,335 detainees. As of today, there are 1,094 detainees housed at the facility. 7. Richwood is a private detention center run by Lasalle Corrections Corporation (LCC). LCC is an independent contractor that provides the facility, management, personnel and services for the 24-hour supervision of the immigrant detainees in ICE custody at Richwood. 8. Medical care at Richwood is provided by contract medical professionals employed by LCC. 9. Richwood has the capacity to house 1,000 detainees. As of today, there are 237 detainees housed at the facility.
2

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 3 of 23
10. Winn is a private detention center run by LCC. LCC is an independent contractor that provides the facility, management, personnel and services for the 24-hour supervision of the immigrant detainees in ICE custody at Richwood. 11. Medical care at Winn is provided by contract medical professionals employed by LCC. 12. Winn has the capacity to house 1,900 detainees. As of today, there are 942 detainees housed at the facility. 13. ACDC is a private detention center run by Core Civic Corrections (CCC). CCC is an independent contractor that provides the facility, management, personnel and services for the 24hour supervision of the immigrant detainees in ICE custody at ACDC. 14. Medical care at ACDC is provided by contract medical professionals employed by CCC. 15. ACDC has the capacity to house 2,300 detainees. As of today, there are 953 detainees housed at the facility. 16. Etowah is a county detention center run by the Etowah County Sheriff’s Office (ECSO). ECSO is a law enforcement agency that provides the facility, management, personnel and services for the 24-hour supervision of the immigrant detainees in ICE custody at Etowah. 17. Medical care at Etowah is provided by medical professionals employed by ECSO. 18. Etowah has the capacity to house 320 detainees. As of today, there are 113 detainees housed at the facility. 19. To provide context for the reasons why each of the 17 named Plaintiffs are in custody, ICE conducted a preliminary review of their case histories and each follows. 20. Talatu Helen Dada is a 40-year-old native and citizen of Nigeria who is detained at the LaSalle ICE Processing Center. She entered the United States on July 13, 2014, as a non-immigrant B2 visitor. Her status was adjusted to that of a conditional lawful permanent resident on October
3

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 4 of 23
15, 2014. Her petition to remove the conditions of residency was denied on November 14, 2017, resulting in the termination of her conditional residency. On June 2, 2018, ERO New Orleans arrested Dada at the Ouachita Parish Correctional Center in Monroe, Louisiana. On June 2, 2018, she was issued a Notice to Appear in immigration court, charging removability pursuant to section 237(a)(1)(D)(i) of the Immigration and Nationality Act (Act). On that same date, Dada entered ICE custody. On November 14, 2018, an immigration judge in Jena, Louisiana ordered Dada removed from the United States. Dada reserved appeal. On December 11, 2018, ICE remanded custody of Dada to the United States Marshal Service (USMS). On April 29, 2019, the Board of Immigration Appeals remanded Dada’s case to the immigration court. On May 21, 2019, Dada was convicted in the United States District Court, Western District of Louisiana, for Conspiracy to Defraud the United States to Obtain Immigration Status, False Statements in Connection with Immigration Documents, and Mail Fraud with Forfeiture Allegations. Dada was sentenced to six months incarceration. On June 14, 2019, the USMS remanded custody of Dada to ICE to continue her immigration proceedings. Her next hearing in immigration court is set for April 8, 2020. 21. Griselda Delbosque is a 57-year-old native and citizen of Mexico who is detained at LaSalle ICE Processing Center. On February 4, 1969, Delbosque was admitted into the United States as a lawful permanent resident. On January 18, 2006, she was convicted in the United States District Court, Northern District of Texas, of Conspiracy to Possess with the Intent to Distribute a Controlled Substance. She was sentenced to 235 months imprisonment. On October 25, 2019, ERO New Orleans encountered Delbosque at the Federal Correctional Institute (FCI), Aliceville, Alabama. She was determined to be removable pursuant to section 237(a)(2)(A)(iii) of the Act. On December 4, 2019, an ICE detainer was lodged. On December 19, 2019, Delbosque was issued a Notice to Appear in immigration court. On January 3, 2020, ICE took Delbosque into custody
4

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 5 of 23
and her case was referred to an immigration judge. Her next hearing in immigration court is set for April 14, 2020. 22. Suresh Kumar is a 37-year-old native and citizen of India who is detained at the LaSalle ICE Processing Center. He entered the United States on unknown date and at an unknown place. On December 25, 2018, the United States Border Patrol (USBP) encountered Kumar at Sam Ysidro, California. He was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On January 2, 2019, ICE took Kumar into custody. On January 23, 2019, Kumar was issued a Notice to Appear in immigration court. On July 11, 2019, the immigration judge ordered Kumar removed to India. Kumar reserved appeal. On December 23, 2019, Kumar filed an appeal with the Board of Immigration Appeals which is currently pending. 23. Nadira Sampath-Grant is a 52-year-old native and citizen of Trinidad and Tobago who is detained at LaSalle ICE Processing Center. On November 27, 2001, Sampath was admitted into the United States as a temporary visitor for pleasure. On January 17, 2008, her status was adjusted to that of a lawful permanent resident. On July 27, 2018, Sampath was convicted in the United States District Court, Southern District of Florida, of Conspiracy to Dispense and Distribute Oxycodone. She was sentence to 18 months imprisonment. On February 19, 2019, ERO New Orleans encountered Sampath at FCI Aliceville. She was determined to be removable pursuant to section 237(a)(2)(A)(iii) of the Act and issued a Notice to Appear in immigration court. An ICE detainer was lodged. On July 8, 2019, Sampath’s cases was referred to an immigration judge in Jena, Louisiana. On November 5, 2019, ICE took Sampath into custody. On January 8, 2020, the immigration judge ordered Sampath removed to Trinidad and Tobago. ERO New Orleans is attempting to obtain travel documents to remove Sampath.
5

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 6 of 23
24. Matilde Flores De Saavedra is a 78-year-old native and citizen of Mexico who is detained at the LaSalle ICE Processing Center. She entered the United States on an unknown date and location without inspection by an immigration officer. On June 15, 1981, her status was adjusted to that of a lawful permanent resident. On October 19, 2018, she was convicted in the United States District Court, Southern District of Texas, for Conspiracy to Transport Undocumented Aliens. She was sentenced to eight months incarceration. On January 18, 2019, ERO New Orleans encountered Flores at FCI Aliceville. She was issued a Notice to Appear in immigration court, charging removability pursuant to section 237(a)(2)(A)(iii) of the Act. On June 28, 2019, Flores entered ICE custody. Her next hearing before an immigration judge is on April 6, 2020. 25. Pardeep Kumar is a 28-year-old native and citizen of India who is detained at the LaSalle ICE Processing Center. On January 1, 2019, the USBP encountered Kumar near Calexico, California and determined him to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act. On January 2, 2019, the USBP issued Kumar an Expedited Removal order. Kumar was later issued a Notice to Appear in immigration court. On January 3, 2019, ERO New Orleans took Kumar into ICE custody. On November 15, 2019, an immigration judge ordered Kumar removed to India. On December 9, Kumar appealed the decision of the immigration judge to the Board of Immigration Appeals. The appeal is currently pending. 26. Rosabel Carrera is a 59-year-old native and citizen of Mexico who is detained at the LaSalle ICE Processing Center. Carrera entered the United States at an unknown place and on an unknown date without inspection. On November 28, 2017, she was convicted in the U.S. District Court, Western District of Texas, Conspiracy to Transport Illegal Aliens. She was sentenced to 46 months imprisonment. On May 30, 2018, ERO New Orleans encountered Carrera at FCI Aliceville and determined her to be inadmissible pursuant to Section 212(a)(2)(A)(i)(I) of the Act.
6

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 7 of 23
On August 23, 2018, ERO New Orleans issued Carrera a Notice to Appear in immigration court. On March 1, 2019, ERO New Orleans took Carrera into ICE custody. On August 30, 2019, an immigration judge terminated proceedings. DHS appealed the decision and on February 6, 2020, the Board of Immigration Appeals sustained the appeal and remanded the case to immigration judge for further proceedings. Carrera’s next hearing before an immigration judge is scheduled for April 7, 2020. 27. Sonia Lemus-De Jasso is a 53-year-old native and citizen of Guatemala who is detained at the LaSalle ICE Processing Center. On August 18, 1989, Lemus was admitted to the United States at Miami as lawful permanent resident. On April 16, 2018, she was convicted in the United States District Court, Southern District of Texas, of Harboring an Alien within the United States for Private Gain. She was sentenced to 24 months imprisonment. On August 22, 2018, ERO New Orleans encountered Lemus at FCI Aliceville and determined her to be removable pursuant to Section 237(a)(2)(A)(iii) on the Act. On April 16, 2019, ERO New Orleans issued Lemus a Notice to Appear in immigration court. On December 18, 2019, an immigration judge ordered Lemus removed to Guatemala. On December 27, 2019, ERO New Orleans took Lemus into ICE custody. On February 4, 2020, Lemus appealed the decision of the immigration judge to the Board of Immigration Appeals. That appeal is currently pending. 28. Antonio Lopez-Agustin is a 36-year-old native and citizen of Mexico who is detained at Richwood. He was encountered by ICE on August 7, 2019, at his place of work, and determined to be removable pursuant to Section 212(a)(6)(A)(i) of the Act. Lopez was issued a Notice to Appear in immigration court. On August 8, 2019, ICE took Lopez into custody. On March 11, 2020, the Immigration Judge ordered Lopez removed to Mexico. On March 18, 2020, Lopez filed an appeal with the Board of Immigration Appeals. This appeal is currently pending.
7

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 8 of 23
29. Diego Carrillo-Och is a 64-year-old native and citizen of Guatemala who is detained at Richwood. He was encountered by the USBP on May 23, 2013, shortly after he had illegally crossed into the United States from Mexico. He was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On May 23, 2013, ICE took Carrillo into custody. On June 20, 2013, Carrillo was issued a Notice to Appear in immigration court. On June 27, 2013, Carrillo was released from ICE custody on an Order of Recognizance. He was encountered by ICE on August 7, 2019, at his place of work, and determined to be amenable to removal. On August 8, 2019, ICE took Lopez into custody. On March 30, 2020, an immigration judge ordered Lopez removed to Guatemala. Lopez waived his appeal. 30. Sigous Asgari is a 59-year-old native and citizen of Iran who is detained at Winn. On June 21, 2017, he was paroled into the United States for prosecution at JFK Airport in New York. On the same date, Asgari was charged in the United States District Court, Northern District of Ohio, with Fraud, Wire Fraud, and Property Crimes. Asgari’s criminal case was dismissed and he was returned to ICE custody on November 15, 2019. November 26, 2019, Asgari was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. He was scheduled to be removed on March 10, 2020, but the flight was cancelled. He was again scheduled for removal on April 1, 2020, but that removal was cancelled due to COVID-19 restrictions. Asgari is scheduled to return to Cleveland ERO on April 6, 2020, where he will be scheduled for a parole interview. 31. Alex Giovanni Hernandez is a 48-year-old native and citizen of Honduras who is detained at Etowah. On September 29, 2016, Hernandez was encountered by ERO Fresno, California at the Corcoran, California State Prison. Hernandez was processed as an Administrative Removal
8

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 9 of 23
under Section 238(b) of the Act for having committed an aggravated felony under Section 237(a)(2)(A)(iii) of the Act. He was serving a 25-year prison term at the time of encounter. Hernandez’s case was referred to the immigration court and on June 19, 2017, an immigration judge in San Francisco granted Hernandez relief from removal. On July 6, 2017, Hernandez and DHS appealed that decision to the Board of Immigration Appeals. On November 24, 2017, the Board of Immigration Appeals dismissed Hernandez’s appeal and sustained the appeal of the DHS, effectively ordering Mr. Hernandez removed to Honduras. On December 14, 2017, Hernandez filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in an automatic Stay of Removal (No. 17-73332). This case is currently pending. On December 20, 2018, Hernandez transferred to Etowah. On January 9, 2019, Hernandez filed a Petition for Writ of Habeas Corpus (No. 4:19-cv-00853) with the United States District Court, Northern District of Alabama. On May 22, 2019, the District Court dismissed that Petition. On January 23, 2020, Hernandez filed a Petition for Writ of Habeas Corpus (No. 4:20-cv-00112) with the United States District Court, Northern District of Alabama. The Petition is still pending. Hernandez has the following criminal convictions: On December 17, 1990, the Superior Court in Los Angeles convicted Hernandez of Robbery in the Second Degree. He was sentenced to two years of confinement. On November 19, 1991, the Superior Court in Los Angeles convicted Mr. Hernandez of Felon in Possession of a Firearm. He was sentenced to two years of confinement. On October 28, 1997, the Superior Court in Los Angeles convicted Mr. Hernandez of Robbery in the second Degree and Possession of a Firearm by a Felon. He was sentenced to 25 years of confinement. 32. Edilia Del Carmen Martinez-Granados is a 52-year-old native and citizen of El Salvador who is detained at the ACDC. She applied for admission into the United States on June 16, 2019
9

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 10 of 23
at the Hidalgo, Texas Port of Entry. She was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On June 22, 2019, ICE took Martinez into custody. On July 22, 2019, Martinez was issued a Notice to Appear in immigration court. Her next scheduled immigration court hearing is on May 4, 2020. 33. Jose Ruben Lira-Arias is a 46-year-old male native and citizen of Venezuela who is detained at the ACDC. On December 26, 2019, the USBP encountered Lira near Lukeville, Arizona. He was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On December 28, 2019, ICE took Lira into custody. On February 7, 2020, Lira was issued a Notice to Appear in immigration court. His next scheduled immigration court hearing is on April 7, 2020. 34. Leyanis Tamayo-Espinosa is a 46-year-old native and citizen of Cuba who is detained at the ACDC. She applied for admission into the United States on September 4, 2019 at the Del Rio, Texas International Bridge Port of Entry. She was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On September 6, 2019, ICE took Tamayo into custody. On September 13, 2019, Tamayo was issued a Notice to Appear in immigration court. Her next scheduled immigration court hearing is on May 1, 2020. 35. Viankis Maria Yanes-Pardillo is a 49-year-old native and citizen of Cuba who is detained at the ACDC. She applied for admission into the United States on August 31, 2019 at the Del Rio, Texas International Bridge Port of Entry. She was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On September 2, 2019, ICE took Tamayo into custody. On September 10, 2019, Tamayo was issued a Notice to Appear in immigration court. Her next scheduled immigration court hearing is on April 24, 2020.
10

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 11 of 23
36. Arnaldo Alexis Mujica-Rangel is a 62-year old native and citizen of Venezuela who is detained at the ACDC. He applied for admission into the United States on March 10, 2019 at the Hidalgo, Texas Port of Entry. He was determined to be inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Act and issued an Expedited Removal order. On March 12, 2019, ICE took Mujica into custody. On March 25, 2020, Mujica was issued a Notice to Appear in immigration court. On September 26, 2019, the immigration judge ordered Mujica removed to Venezuela. On October 25, 2019, Mujica filed an appeal with the Board of Immigration Appeals. On February 12, 2020, the Board of Immigration Appeals dismissed the appeal. Mujica’s case is being reviewed for release on an Order of Supervision. 37. As of today, there are no confirmed cases of COVID-19 among the detainee population or staff in the above-listed facilities. 38. ICE is taking important steps to further safeguard those in its care. As a precautionary measure, ICE has temporarily suspended social visitation in all detention facilities. 39. Currently, the CDC advises self-monitoring at home for people in the community who meet epidemiologic risk criteria, and who do not have fever or symptoms of respiratory illness. In detention settings, cohorting serves as an alternative to self-monitoring at home. See attached IHCS Interim Recommendations for Risk Assessment of Persons with Potential 2019-Novel Coronavirus (COVID-19) Exposure in Travel-, Community-, Custody-Settings, updated March 11, 2020. 40. Comprehensive protocols are in place for the protection of staff and patients, including the appropriate use of personal protective equipment (PPE), in accordance with CDC guidance. ICE has maintained a pandemic workforce protection plan since February 2014, which was last updated in May 2017. This plan provides specific guidance for biological threats such as
11

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 12 of 23
COVID-19. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-19. The ICE Occupational Safety and Health Office is in contact with relevant offices within the Department of Homeland Security, and in January 2020, the DHS Workforce Safety and Health Division provided DHS components additional guidance to address assumed risks and interim workplace controls. This includes the use of N95 masks, available respirators, and additional PPE. 41. ICE instituted screening guidance for new detainees who arrive at facilities to identify those who meet CDC’s criteria for epidemiologic risk of exposure to COVID-19. IHSC isolates detainees with fever and/or respiratory symptoms who meet these criteria and observe them for a specified time period. IHSC staff consult with the local health department, as appropriate, to assess the need for testing. Detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days. 42. Detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population. ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19. This prevents the spread of the agent to other individuals and the general public. ICE transports individuals with moderate to severe symptoms, or those who require higher levels of care or monitoring, to appropriate hospitals with expertise in high-risk care. Detainees who do not have fever or symptoms, but meet CDC criteria for epidemiologic risk, are housed separately in a single cell, or as a group, depending on available space. 43. ICE reviews CDC guidance daily and continues to update protocols to remain consistent with CDC guidance.
12

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 13 of 23
44. ICE provides detainees with soap for the shower and hand soap for sink handwashing. ICE also provides soap and paper towels that are present in bathrooms and work areas within the facilities. Everyday cleaning supplies such as soap dispensers and paper towels are routinely checked and are available for use. Detainees are encouraged to communicate with local staff when additional hygiene supplies or products are needed. 45. ICE has reviewed its “at risk population” to include the elderly, pregnant detainees, and others with compromised immune systems to ensure that detention is appropriate given the circumstances. Custody determinations are made on a case-by-case basis at each detention facility and include, among other factors, the public safety risk that such release could create and the requirement to detain certain aliens under law. See Section 236 of Act, 8 U.S.C. § 1226. ICE will continue to review its “at risk population” in the days and weeks ahead when deciding whether any detainees should be released from custody.
Pursuant 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed this 3rd day of April, 2020,
_____________________________________ MICHAEL NELSON Assistant Field Office Director U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement Birmingham, AL
13

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 14 of 23

IHSC Interim Recommendations for Risk Assessment of Persons with Potential 2019-Novel Coronavirus (COVID-19) Exposure in Travel-, Community-, or Custody Settings1
Updated March 11, 2020

Exposure Risk Category
High risk
Medium risk (assumes not having any exposures in the high-risk category)

Centers for Disease Control and Prevention

(CDC) Definition (as of March 7, 2020)

IHSC Detention Setting Definition

• Travel from Hubei Province, China or Iran

• Travel from or through Hubei Province, China

or Iran

• Living in the same household as, being an intimate • Housing in the same 2–4-person cell or

partner of, or providing care in a nonhealthcare

sleeping with head position within 6 feet of a

setting (such as a home) for a person with

person with symptomatic laboratory-confirmed

symptomatic laboratory-confirmed COVID-19

COVID-19

infection without using recommended

precautions for home care and home isolation

• Travel from a country with widespread sustained • Travel from or through international area(s)

transmission, other than Hubei Province, China or with sustained community transmission* in the

Iran

past 14 days other than Hubei Province, China

• Travel from a country with sustained community

or Iran

transmission

*Please see CDC website listing of geographic

area(s) with widespread or sustained community

transmission at

https://www.cdc.gov/coronavirus/2019-

ncov/hcp/clinical-criteria.html

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 15 of 23

Exposure Risk Category
Low risk (assumes not having any exposures in the high- or medium risk categories)

Centers for Disease Control and Prevention (CDC) Definition (as of March 7, 2020)
• Close contact with a person with symptomatic laboratory-confirmed COVID-19
• On an aircraft, being seated within 6 feet (two meters) of a traveler with symptomatic laboratoryconfirmed COVID-19 infection; this distance correlates approximately with 2 seats in each direction
• Living in the same household as, an intimate partner of, or caring for a person in a nonhealthcare setting (such as a home) to a person with symptomatic laboratory-confirmed COVID19 infection while consistently using recommended precautions for home care and home isolation

IHSC Detention Setting Definition • Close contact2 with a person with symptomatic
laboratory-confirmed COVID-19) • On an aircraft, bus, or van, being seated within
6 feet (two meters) of a traveler with symptomatic laboratory-confirmed COVID19; this distance correlates approximately with 2 rows or 2 seats in each direction • Housing in the same unit as a person with symptomatic laboratory-confirmed COVID-19 but not in the same 2–4- person cell and not sleeping with head position within 6 feet of a person with symptomatic laboratoryconfirmed COVID-19

• Travel from or through any other country • Being in the same indoor environment (e.g., a
classroom, a hospital waiting room) as a person with symptomatic laboratory-confirmed COVID19 for a prolonged period of time but not meeting the definition of close contact
• On an aircraft, being seated within two rows of a traveler with symptomatic laboratory-confirmed 2019-nCoV infection but not within 6 feet (2 meters) (refer to graphic) AND not having any exposures that meet a medium- or a high-risk definition (refer to graphic)

• Travel from or through any other country
• Being in the same indoor environment (e.g., general detention population, dining hall, recreation, work duty, library, or religious services) as a person with symptomatic laboratory-confirmed COVID-19 for a prolonged period of time but not meeting the definition of close contact2
• On an aircraft, bus, or van being seated within two rows of a traveler with symptomatic laboratory-confirmed COVID-19 but not within 6 feet (2 meters) (refer to graphic)

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 16 of 23

Exposure Risk Category
No identifiable risk
No risk

Centers for Disease Control and Prevention (CDC) Definition (as of March 7, 2020) N/A
Interactions with a person with symptomatic laboratory-confirmed COVID-19 infection that do not meet any of the high-, medium- or low-risk conditions above, such as walking by the person or being briefly in the same room.
N/A

IHSC Detention Setting Definition Direct close contact2 with a person under investigation for COVID-19 that is pending laboratory confirmation Interactions with a person with symptomatic laboratory-confirmed COVID-19 or a person under investigation for COVID-19 that do not meet any of the high-, medium- or low-risk conditions above, such as walking by the person or being briefly in the same room. Exposure to an asymptomatic person who was exposed to another person with high-, medium, low-, or no identifiable risk of exposure to COVID-19

Graphic

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 17 of 23

Sample seating chart for a COVID-19 aircraft contact investigation showing risk levels based on distance from the infected traveler.1 1Source and adapted from CDC | Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases 2Close 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)

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 18 of 23

IHSC Interim Recommended Actions Based on Risk Assessment of Persons with Potential 2019 Novel Coronavirus (COVID19) Exposure in Travel-, Community-, or Custody Settings1

Updated March 11, 2020

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

SYMPTOMATIC [refer also to 2019 Novel Coronavirus Resource Page]

High risk

• ISOLATION

• Immediate isolation with consideration of • Promptly place a surgical mask over the patient’s face

public health orders

and nose

• Public health assessment to determine the • Refer to a provider

need for medical evaluation; if medical • Promptly place in an airborne infection isolation room

evaluation warranted, diagnostic testing

(AII); priority for AII room use

should be guided by CDC’s PUI definition • Consult with the local health department for guidance

• If medical evaluation is needed, it should on testing for COVID-19

occur with pre-notification to the receiving HCF and EMS, if EMS transport indicated, and with all recommended infection control precautions in place.

• •

Consult with Regional Clinical Director and Infectious Disease Program Implement administrative and environmental controls

• Controlled travel: Air travel only via air • Implement strict hand hygiene

medical transport. Local travel is only

• Implement standard precautions

allowed by medical transport (e.g.,

• Implement transmission-based precautions; see

ambulance) or private vehicle while

Reducing the Risk of COVID-19 Transmission

symptomatic person is wearing a face

• Request medical hold

mask.

• Recommend no transfer or transport

• Document in Lower Respiratory Illness Tracking Tool

Medium risk

• Self-isolation

• ISOLATION

• Public health assessment to determine the • Promptly place a surgical mask over the patient’s face

need for medical evaluation; if medical

and nose

evaluation warranted, diagnostic testing • Refer to a provider

should be guided by CDC’s PUI definition

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 19 of 23

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

• If medical evaluation is needed, it should • Promptly place in an AII room; priority for AII room

ideally occur with pre-notification to the use

receiving HCF and EMS, if EMS transport • Consult with the local health department for guidance

indicated, and with all recommended

on testing for COVID-19

infection control precautions in place.

• Consult with Regional Clinical Director and Infectious

• Controlled travel: Air travel only via air

Disease Program

medical transport. Local travel is only

• Implement administrative and environmental controls

allowed by medical transport (e.g., ambulance) or private vehicle while symptomatic person is wearing a face mask.

• Implement strict hand hygiene • Implement standard precautions • Implement transmission-based precautions; see
Reducing the Risk of COVID-19 Transmission

• Request medical hold

• Recommend no transfer or transport

• Document in Lower Respiratory Illness Tracking Tool

Low risk

• ISOLATION

• Promptly place in an AII room if available, or other

single room

• Self-isolation, social distancing

• Use discretion to prioritize AII room needs, including

• Person should seek health advice to

high- and medium- risk and symptoms consistent with

determine if medical evaluation is needed. COVID-19, tuberculosis (TB), influenza, varicella, etc.

• •

If sought, medical evaluation and care should be guided by clinical presentation; diagnostic testing for COVID-19 should be guided by CDC’s PUI definition.

• •

Refer to a provider Consult with the local health department for guidance on testing for COVID-19

Travel on commercial conveyances should • Consult with Regional Clinical Director and Infectious

be postponed until no longer symptomatic. Disease Program

• Implement administrative and environmental controls

• Implement strict hand hygiene

• Implement standard precautions

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 20 of 23

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

• Implement transmission-based precautions; see Reducing the Risk of COVID-19 Transmission
• Request medical hold • Recommend no transfer or transport • Document in Lower Respiratory Illness Tracking Tool

No Identifiable Risk2

• Self-isolation, social distancing • Person should seek health advice to
determine if medical evaluation is needed. • If sought, medical evaluation and care
should be guided by clinical presentation; diagnostic testing for COVID-19 should be guided by CDC’s PUI definition. • Travel on commercial conveyances should be postponed until no longer symptomatic.

• ISOLATION • Promptly place in an AII room if available, or other
single room • Use discretion to prioritize AII room needs, including
high- and medium- risk and symptoms consistent with COVID-19, tuberculosis (TB), influenza, varicella, etc. • Refer to a provider • Consult with the local health department for guidance on testing for COVID-19 • Consult with Regional Clinical Director and Infectious Disease Program • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • Implement transmission-based precautions; see Reducing the Risk of COVID-19 Transmission

No risk

N/A

No restriction

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 21 of 23

High risk Medium risk

ASYMPTOMATIC

[refer also to 2019 Novel Coronavirus Resource Page]

• MONITORING

• Cohort alone or as a group with other asymptomatic

persons under monitoring for 14 days after initial DHS

apprehension

• Quarantine (voluntary or under public

• Prioritize medical housing unit needs based on acuity

health orders) in a location to be determined and suspected or known contagiousness

by public health authorities.

• Implement administrative and environmental controls

• No public activities. • Daily active monitoring, if possible based
on local priorities

• Implement strict hand hygiene • Implement standard precautions

• Controlled travel

• See Reducing the Risk of COVID-19 Transmission

• Monitor daily for fever and symptoms

• Add medical alert

• Recommend no transfer or transport during monitoring

period

• Document in Lower Respiratory Illness Tracking Tool

Close contacts in this category: • Recommendation to remain at home or in a comparable setting • Practice social distancing • Active monitoring as determined by local priorities • Recommendation to postpone longdistance travel on commercial conveyances
Travelers from mainland China (outside Hubei Province) or Iran
• Recommendation to remain at home or in a comparable setting
• Practice social distancing

• MONITORING • Cohort alone or as a group with other asymptomatic
persons under monitoring for 14 days after initial DHS apprehension • Prioritize medical housing unit needs based on acuity and suspected or known contagiousness • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • See Reducing the Risk of COVID-19 Transmission • Monitor daily for fever and symptoms • Add medical alert • Recommend no transfer or transport during monitoring period

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 22 of 23

• Self-monitoring with public health supervision as determined by local priorities
• Recommendation to postpone additional long-distance travel on commercial conveyances after they reach their final destination
Travelers from other country with widespread transmission
• Recommendation to remain at home or in a comparable setting,
• Practice social distancing • Self-monitoring • Recommendation to postpone additional
long-distance travel on commercial conveyances after they reach their final destination Travelers from country with sustained community transmission • Practice social distancing • Self-observation

• Document in Lower Respiratory Illness Tracking Tool

Case 2:20-cv-01093-GGG-KWR Document 7-1 Filed 04/03/20 Page 23 of 23

Low risk

• No restriction on movement • Self-observation

• MONITORING • Cohort alone or as a group with other asymptomatic
persons under monitoring for 14 days after initial DHS apprehension • Prioritize medical housing unit needs based on acuity and suspected or known contagiousness • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • See Reducing the Risk of COVID-19 Transmission • Monitor daily for fever and symptoms • Document in Lower Respiratory Illness Tracking Tool

No identifiable risk

None

No restriction

No risk

N/A

No restriction

1Source and adapted from CDC | Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential

Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Case