Case 1:20-cv-00480-JEJ Document 1 Filed 03/24/20 Page 1 of 51

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER; ADEBODUN ADEBOMI IDOWU; COURTNEY STUBBS; RIGOBERTO GOMEZ HERNANDEZ; RODOLFO AGUSTÍN JUAREZ JUAREZ; MEILING LIN; HENRY PRATT; JEAN HERDY CHRISTY AUGUSTIN; MAYOWA ABAYOMI OYEDIRAN; AGUS PRAJOGA; MANSYUR; CATALINO DOMINGO GOMEZ LOPEZ; and DEXTER ANTHONY HILLOCKS,
Petitioners-Plaintiffs, vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison; ANGELA HOOVER, in her official capacity as Warden of Clinton County Correctional Facility; CRAIG A. LOWE, in his official capacity as Warden of Pike County Correctional Facility; SIMONA FLORES-LUND, in her official capacity as Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; and CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security,
Respondents-Defendants.

Case No. ________

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INTRODUCTION COVID-19, the disease caused by a novel coronavirus, is rampaging across the world like an out-of-control wildfire. It has become a global pandemic with lethal consequences, especially for the elderly and people with certain pre-existing medical conditions. As of March 23, more than 332,900 individuals have already tested positive for the virus, and 14,510 have died. Ex. 1 (Amon Decl.) at ¶ 5. The death toll in the United States, and Pennsylvania, is steadily rising. Id. There is no vaccine against COVID-19, and there is no known cure. No one is immune. Id. at 6. It is no longer a question of whether and when, but how many victims and who dies. Plaintiffs are a diverse group of individuals from around the world who are held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility, and Pike County Correctional Facility while they await disposition of their immigration cases. They are united by the fact that they are older adults and/or they have serious pre-existing medical conditions, including lung disease, heart disease, diabetes, severe asthma, chronic kidney disease, immunosuppression, liver disease, chronic hepatitis B, spinal cord injury, high blood pressure, and cancer. While COVID-19 infects anyone who comes into contact with it, the highest risk of serious illness and death is in individuals who, like plaintiffs, are age 45 and
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over or have one of the pre-existing medical conditions. Amon Decl. at ¶¶ 8-11. Epidemiological studies indicate that about 15% in this group will die. Golub Decl.at ¶ 4. For others, the COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and can damage tissues in other vital organs including the heart and liver. Id. at ¶ 9. Patients with serious cases of COVID-19 require advanced medical support, including positive pressure ventilation and extracorporeal mechanical oxygenation in intensive care. Id. at ¶ 8. Patients who do not die from serious cases of COVID19 may face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity. Id. at ¶ 9.
Because COVID-19 spreads exponentially, meaning that a single infection can grow into hundreds in a matter of days, Amon Declaration at ¶ 5, the only known measure to mitigate the widespread contagion is to deprive COVID-19 of the fuel it needs by allowing people to keep safe distances from one another to reduce the number of infections and ease the strain on overwhelmed local health systems. Id. at ¶¶ 23, 26. This is why public health officials around the world have implemented extraordinary measures, like closing schools, courts, sporting events, theaters and other congregate settings. 50 states, 7 territories, and the District of Columbia have taken some type of formal executive action in response to the COVID-19 outbreak, including ordering people to stay inside. Over the past week,
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Pennsylvania Governor Tom Wolf declared a state of emergency, which includes orders to close non-essential businesses and, just yesterday, issued an order to residents of Bucks, Chester, Delaware, Monroe and Montgomery counties to stay at home. Philadelphia had already issued such an order. Id. at ¶ 24.
Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19, and because carceral facilities also include security restrictions they pose the highest public health risk to the spread of COVID-19. People live in close quarters and are subject to security measures which prohibit successful “social distancing” that is needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
Current conditions and procedures in place at the three ICE facilities, as described by plaintiffs’ declarations, cannot be seen as sufficient to prevent the introduction of COVID-19 or to prevent its rapid transmission among both detainees and staff. Based upon the plaintiffs’ declarations, none of the ICE facilities are following CDC guidance in relation to social distancing. This failure puts all detainees, and especially those at high risk of severe disease and death, in
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jeopardy. The only viable public health strategy available, given the lack of a vaccine for prevention or effective treatment at this stage of the pandemic, is to release individuals who can be considered at high risk of severe disease if infected with COVID-19.
Plaintiffs’ public health and medical experts attest that the crowded conditions at the three prisons make the most vital preventative measure, social distancing, impossible. Based on descriptions in 13 Plaintiff declarations about conditions within the three facilities, some Plaintiffs are triple-celled and others are packed into open spaces where they literally can touch people sleeping next to them. Sixty people share a handful of sinks and showers in communal bathrooms that are cleaned infrequently. They eat sitting right next to each other on meals prepared and served in unsanitary conditions. The prisons’ medical practices are inconsistent with CDC guidelines. Two plaintiffs, and many other detainees, have COVID-19 symptoms, but the prisons refuse to test them. They are neither quarantined nor isolated. Based on the inability to practice CDC-recommended social distancing and good hygiene practice, the unhygienic feeding and bathrooms situations, and contra-indicated medical practices, Plaintiffs’ experts testify that the conditions greatly heighten likelihood of contagion, putting Plaintiffs at grave risk of serious illness and death.
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Clustering vulnerable individuals under these circumstances and waiting for COVID-19 to explode in detention centers is not just a humanitarian crisis, it is a constitutional one. Courts have long recognized that the Eighth Amendment’s prohibition on cruel and unusual punishment forbids the government from leaving them to suffer and die from infectious disease. The nature of the pandemic and the conditions of confinement at the three prisons make it impossible for Defendants to protect vulnerable Plaintiffs from risk of infection. That risk of harm, which includes a one-in-seven chance of death, is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993).
There is growing recognition among courts and even prison systems that release from detention is the only way to protect vulnerable detainees from COVID-19. The Ninth Circuit recently ordered the release of an immigrant from ICE detention in light of the dangers posed by the COVID-19 crisis. See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (Order) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”). See also In re Extradition of Alejandro Toledo Manrique, No. 19-71055, 2020 WL 1307109, at
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*1 (N.D. Cal. Mar. 19, 2020) (explaining that “the government’s suggestion that [the plaintiff] should wait until there is a confirmed outbreak of COVID-19 in [the facility] before seeking release is impractical. By then it may be too late.”).
This Court has the authority and the obligation to order Defendants to comply with the Fifth Amendment and release Plaintiffs from civil detention. For the reasons discussed below and in the accompanying legal memorandum, this Court should immediately issue a temporary restraining order or preliminary injunction requiring ICE to temporarily release Plaintiffs from custody so that they have a chance to avoid infection and the likely serious illness, and even death, from COVID-19. The wildfire is entering the prisons. These are extraordinary times that call for extraordinary measures. Plaintiffs implore this Court to issue an order saving those who are most vulnerable to severe illness and death from the oncoming calamity.
JURSIDICTION AND VENUE 1. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 2. Venue lies in the United States District Court for the Middle District of Pennsylvania because Plaintiffs are detained by respondents at three county prisons
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– located in York, Pike and Clinton counties – all of which are located within the Middle District. 28 U.S.C. § 2242. Venue is proper in the Middle District of Pennsylvania because a substantial portion of the relevant events occurred in the District and because several defendants reside in the District. 28 U.S.C. § 1391(b), (e)(1).
PARTIES Petitioners/Plaintiffs
3. Petitioner-Plaintiff Bharatkumar G. Thakker is a 65-year-old male citizen of India who has been detained by ICE at Pike County Correctional Facility for 27 months.1 He suffers from several serious health conditions, including respiratory problems, declining kidney function, high blood pressure, high cholesterol, and a history of seizures. During this detention, he has twice required hospitalization. His age and serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Two days ago, Mr. Thakker’s cell mate, who sleeps three feet away, started coughing, had chills and felt achy. As of March 23, Mr. Thakker also began coughing and feeling dizzy. The prison has neither tested nor quarantined either man. Ex. 3 (Thakker Decl.).
1 Mr. Thakker recently filed a writ of habeas corpus before this honorable court. See Thakker v. Lowe, 1:19-cv-00664-JEJ-EBC (M.D. Pa).
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4. Petitioner-Plaintiff Adebodun Adebomi Idowu is a 57-year-old man from Nigeria who is detained by ICE at Clinton County Correctional Facility.2 Mr. Idowu suffers from Type II diabetes, high blood pressure, and high cholesterol. He receives medication for these conditions, including insulin and metformin, and has been hospitalized three times because the facility failed to provide him with insulin. As a consequence of his age and health conditions, he is at a high risk of severe illness or death if he contracts COVID-19. Ex. 4 (Idowu Decl.).
5. Petitioner-Plaintiff Courtney Stubbs is a 52-year-old male citizen of Jamaica who has been detained by ICE at Pike County Correctional Facility. Mr. Stubbs receives treatment for multiple medical conditions. He is a kidney-transplant patient who receives a regimen of medications, suffers from Type II diabetes, and has heart stents. These serious maladies and his age place Mr. Stubbs at a high risk of severe illness or death if he contracts COVID-19. Ex. 5 (Stubbs Decl.).
6. Petitioner-Plaintiff Meiling Lin is a 45-year-old female citizen of China who is detained by ICE at York County Prison. Ms. Lin has chronic hepatitis B. She also suffers from severe chronic pain, liver disease, and other medical complications as a result of her forced sterilization surgery in China. As a consequence of her health
2 Mr. Idowu currently has a writ of habeas corpus pending before this honorable court. See Idowu v. Clinton County Correctional Facility, et al., 1:20-cv-00146-JEJ-EBC.
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conditions, she is at a high risk of severe illness or death if she contracts COVID19. Ex. 9 (Lin Decl.).
7. Petitioner-Plaintiff Jean H.C. Augustin is a 34-year-old male citizen of Haiti who is detained by ICE at York County Prison. He suffers from diabetes, high blood pressure, chronic anemia, and nerve issues. He also was the victim of a gunshot wound that caused permanent partial disability and suffers myriad health issues stemming from the injury. During his detention he has required multiple hospitalizations. As a consequence of his health conditions, he is at a high risk of severe illness or death if he contracts COVID-19. Ex. 11 (Augustin Decl.).
8. Petitioner-Plaintiff Rodolfo Agustín Juarez Juarez is a 21-year-old male citizen of El Salvador who is detained by ICE at York County Prison. Mr. Juarez suffers from diabetes. He has had a fever, persistent cough, and trouble breathing for the past week. The facility has told him it cannot test him for COVID-19 because it does not have tests. Mr. Juarez is at a high risk of severe illness or death if he contracts or has contracted COVID-19 because of his serious health conditions. Ex. 8 (Juarez Decl.).
9. Petitioner-Plaintiff Catalino Domingo Gomez Lopez is a 51-year-old male citizen of Guatemalan who is detained by ICE at York County Prison. Since being detained in November 2018, Mr. Gomez Lopez has had the flu four times. Most recently, in February of 2020, he was so ill that he was coughing blood. He has
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not been tested for COVID-19. Mr. Gomez Lopez is at a high risk of severe illness or death if he contracts or has contracted COVID-19 because of his age and serious health conditions. Ex. 15 (Gomez Lopez Decl.).
10. Petitioner-Plaintiff Rigoberto Gomez Hernandez is a 52-year-old male Mexican national who is detained by ICE at Pike County Correctional Facility. Mr. Gomez Hernandez has multiple chronic health issues. He is diabetic and currently receiving treatment for an ulcer. His detention has also caused him mental anguish. As a consequence of his age and health conditions, Mr. Gomez Hernandez is at a high risk of severe illness or death if he contracts COVID-19. Ex. 7 (Gomez Hernandez Decl.).
11. Petitioner-Plaintiff Henry Pratt is a 50-year-old male citizen of Liberia. He is detained by ICE at Clinton County Correctional Facility. Mr. Pratt suffers from Type II diabetes and high blood pressure, for which he receives medication. Mr. Pratt is at a high risk of severe illness or death if he contracts or COVID-19 because of his age and serious health conditions.3 Ex. 10 (Pratt Decl.).
12. Petitioner-Plaintiff Mayowa Abayomi Oyediran is a forty-year-old male citizen of Nigeria who is detained by ICE at York County Prison. Mr. Oyediran has severe asthma and has an infection in his lungs. Yet while in detention, he has
3 Mr. Pratt currently has a writ of habeas corpus pending before the middle district, although the last docket entry is from June 10, 2019. See Pratt v. Doll, et al., 3:19-cv-00342-RDMCA.
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not been given an inhaler or any other kind of treatment for his asthma. He has not been treated for the lung infection either. As a consequence of his age and health conditions, Mr. Oyediran is at a high risk of severe illness or death if he contracts COVID-19. Ex. 12 (Oyediran Decl.).
13. Petitioner-Plaintiff Mansyur is a 41-year-old male citizen of Indonesia. He is detained by ICE at Pike County Correctional Facility. Mr. Mansyur has diabetes, thyroid issues, and high blood pressure. Mr. Mansyur is at high risk of severe illness or death if he contracts COVID-19 because of his serious health conditions. Ex. 14 (Mansyur Decl.).
14. Petitioner-Plaintiff Agus Prajoga is a 48-year-old male citizen of Indonesia who is detained by ICE at Pike County Correctional Facility. Mr. Prajoga has diabetes, cholesterol, high blood pressure, and hepatitis B. As a consequence of his age and serious health conditions, Mr. Prajoga is at a high risk of severe illness or death if he contracts COVID-19. Ex. 13 (Prajoga Decl.).
15. Petitioner-Plaintiff Dexter Anthony Hillocks is a 54-year-old male lawful permanent resident from Trinidad & Tobago. He is detained at Pike County Correctional Facility. Mr. Hillocks suffers serious health problems, including diabetes, high blood pressure, high cholesterol, and anemia. He also was recently diagnosed with leukemia. Mr. Hillocks is at high risk of severe illness or death
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because of his age and serious health conditions if he contracts COVID-19. Ex. 16 (Hillocks Decl.).
Respondents/Defendants 16. Respondent-Defendant Simona Flores-Lund is the Field Office
Director for Enforcement and Removal Operations (“ERO”) in the Philadelphia Field Office of Immigration and Customs Enforcement (“ICE”), an agency within the U.S. Department of Homeland Security. ERO is a division of ICE that manages and oversees the immigration detention system. In her capacity as Field Director for ERO, Defendant Flores-Lund exercises control over and is a custodian of immigration detainees held at all of the correctional facilities in Pennsylvania that house ICE detainees, including the three at issue in this case, namely, the York County Prison, the Clinton County Correctional Facility, and the Pike County Correctional Facility. At all times relevant to this Complaint, Defendant Flores-Lund was acting within the scope and course of her employment with ICE. She is sued in her official capacity.
17. 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 Plaintiffs. At
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all times relevant to this complaint, Defendant Albence was acting within the scope and course of his position as an ICE official. He is sued in his official capacity.
18. 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. ERO, a division within ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
19. Respondent-Defendant Chad Wolf is sued in his official capacity as the Acting Secretary for DHS. In this capacity, he has responsibility for the administration of immigration laws pursuant to 8 U.S.C. § 1103(a), has authority over ICE and its field offices, and has authority to order the release of Plaintiffs. At all times relevant to this complaint, Mr. Wolf was acting within the scope and course of his position as the Acting Secretary for DHS. He also is a legal custodian of Plaintiffs.
20. Respondent-Defendant Clair Doll is the Warden of the York County Prison in York, Pennsylvania, where Plaintiffs Lin, Juarez, Augustin, Gomez Lopez, and Oyediran are detained. Defendant Doll is the immediate, physical custodian of these Plaintiffs. He is sued in his official capacity.
21. Respondent-Defendant Angela Hoover is the Warden of the Clinton County Correctional Facility in McElhattan, Pennsylvania, where Plaintiffs Idowu,
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Stubbs and Pratt are detained. Defendant Hoover is the immediate, physical custodian of these Plaintiffs. She is sued in her official capacity.
22. Respondent-Defendant Craig A. Lowe is the Warden of the Pike County Correctional Facility in Lords Valley, Pennsylvania, where Plaintiffs Thakker, Prajoga, Mansyur, Gomez Hernandez, and Hillocks are detained. Defendant Lowe is the immediate, physical custodian of these Plaintiffs. He is sued in his official capacity.
STATEMENT OF FACTS A. COVID-19 Poses A Grave Risk of Harm, Including Serious Illness or
Death, to Persons Age 45 and Over and Those with Certain Medical Conditions. 23. COVID-19 is a disease caused by coronavirus that has reached pandemic status. According to the World Health Organization, as of March 23, more than 332,900 people have been diagnosed with COVID-19 in 190 countries or territories around the world and 14,510 have died as a result. Amon Decl. at ¶ 5. In the United States, about 41,000 people have been diagnosed with the disease and 479 people have died thus far. Id. In Pennsylvania, there are at least 644 confirmed cases and five deaths. Id. 24. The rates of infection are exponential, not linear, meaning that, for each person infected one day, the next day we should expect to see not one, but many more instances of infection. Id. Without effective public health interventions, CDC
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projections indicate about 200 million people in the United States could be infected over the course of the pandemic, with as many as 1.5 million people dying from this infection. Ex. 2 (Golob Decl.) at ¶ 11.
25. Outcomes from COVID-19 vary from asymptomatic infection to death. Individuals who are at low risk may experience mild symptoms, while high risk individuals may suffer respiratory failure from the disease. Amon Decl. at ¶ 6. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen will die. Golob Decl. at ¶ 4. In other words, more than one in every seven people in this high-risk group are likely to die, and an even higher percentage will suffer serious illness.
26. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. Golob Decl. at ¶ 9.
27. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. Id
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28. Emerging evidence also suggests that COVID-19 can trigger an overresponse of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id,
29. Individuals aged 65 and older and those of any age with serious underlying medical conditions are at the highest risk of severe disease and death if they are infected with COVID-19. Amon Decl. at 9. According to the Centers for Disease Control (CDC), these underlying conditions include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions, and current or recent pregnancy. Amon Decl. at ¶ 8.
30. While patients over 65 are at the highest risk, the risks of severe disease from infection increase starting at age 40. Amon Decl. at ¶ 7. CDC data suggests that individuals aged 45 and older are considered high risk for disease, with those age 54 and older considered high risk for severe disease and death. Amon Decl. at ¶¶ 8, 10.
31. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected with the coronavirus. Amon Decl. at ¶ 6.
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32. COVID-19 infects people who come into contact with respiratory droplets that contain the coronavirus. Such contact can occur at a distance of six feet. It is also possible that an individual can become infected by touching a surface with the virus and then touching their mouths. Thus, the only known means of minimizing the risk of infection are social distancing and increased sanitization. Amon Decl. at ¶ 23.
33. Increasingly, research shows that social distancing is the primary means of risk mitigation. Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic. The CDC recommends a social distance of at least 6 feet to minimize the risk of spread. Amon Decl. at ¶ 23; Golob Decl. at ¶ 10.
34. In response to this research, countries around the world have sought to make social distancing into public policy. Italy has enacted a national lock-down, prohibiting people from leaving their homes. Amon Decl. at ¶27. Fifty states, seven territories, and the District of Columbia have all taken formal executive action to contain the outbreak. Id. at 24. California’s governor, for example, issued a shelterin-place order closing businesses and requiring residents to stay at home. New York’s governor issued a similar order. Id. at ¶ 25. Thus far, six counties in Pennsylvania have these kinds of orders in place. Id. at ¶ 24. Nationwide, a total of 165 million people are under such stay-at-home-orders. Id. at ¶ 24-25. Pennsylvania
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has banned people from congregating and has shut down all non-essential businesses where people might come into contact with each other. Id. at ¶ 25. The idea behind these actions is that, by “flattening the curve,” those most vulnerable will be least likely to become infected and, if they do, the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them. Id. at ¶ 26.
B. Conditions in Pennsylvania’s Immigration Detention Facilities Increase the Risk of COVID-19 Infection. 35. The conditions in Pennsylvania’s immigrant detention facilities
contravene all medical and public health directives for risk mitigation. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Nor is such social distancing a possible solution, given the crowding of the facilities and the limitations on space. Amon Decl. at ¶¶ 29, 30.
36. At York, dorms are filled with between 50 and 60 people, all in a single room. Everyone in the dorm sleeps on bunkbeds so close that two people cannot fit between each set of beds. Augustin Decl. at ¶ 16; Lin Decl. at ¶ 13. It is literally impossible for people to get more than 6 feet apart from each other in these dorms. Id.
37. At Clinton, over 70 people are housed in a single dorm, where they sleep on bunk beds that line the room in 6 or 7 rows, with five bunks per row and a
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knee-high divider between the sides of the room. Pratt Decl. at ¶ 7; Idowu Decl.at ¶ 11. The bunk beds are so close together that individuals can reach out and touch each other from their beds. Pratt Decl. at ¶ 6. Individuals at Clinton are thus forced to sleep in close proximity—much less than 6 feet apart. Id.
38. At Pike, individuals are divided into blocks of nearly 50 people, where they are triple celled in cells that are about 8 feet by 12 feet and contain a bunk bed, single bed, and shared toilet and sink. Thakker Decl. at ¶ 11. Cellmates cannot get more than five feet apart from each other at any time while in their cells. Stubbs Decl. at ¶ 13.
39. Other aspects of detention also preclude the CDC-recommended social distancing, and increase transmission opportunities. Shared use of common facilities generate further opportunities for infection. Toilets, sinks, and showers are shared, without disinfection between use. Amon Decl. at ¶ 42. Food preparation and food service is communal, with little opportunity for surface disinfection. Amon Decl. at ¶ 30
40. For instance, at Clinton, individuals must crowd around tables, with eight or nine people sitting shoulder to shoulder at each of the six round tables. Idowu Decl.at ¶ 12. The day space is so limited that some people end up eating in their beds, which are separated from the day space by only a knee-high divider. Pratt at ¶ 8. At York, all 50-60 people in a unit eat together, at tables of four, so close to
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each other that people struggle to navigate around the tables. Augustin Decl. at ¶ 17. People eat from open trays in these crowded spaces. Lin Decl. at ¶ 14. Here, too, individuals cannot practice social distancing because there is simply nowhere for them to go. Thus, even where utmost care is taken, these detention centers cannot physically space people 6-feet apart at all times.
41. Shared bathrooms with poor sanitization provide another locus for infection. At York, there are six toilets and six showers for a unit of nearly sixty. Augustin Decl. at ¶ 20; Lin Decl.at ¶ 16. Detainees have limited access to running water, and must use bathroom sinks that are for hand washing and brushing teeth to access water for food they prepare in their dorms. Ruiz Decl. at ¶ 5. At Clinton, there are four sinks and four showers for over seventy people. Idowu Decl. at ¶ 13. Prisoners at Clinton are sometimes tasked with cleaning these facilities with no gloves. Idowu Decl. at ¶ 13. Because of failures with the washing machines at Clinton, people have also been forced to use the bathroom sinks to wash the two sets of jail-issued clothing that they wear daily. Pratt Decl.at ¶ 11. At Pike, inmates must use the bathroom and shower with a limited soap ration provided once per day. Stubbs Decl. at ¶ 16. Hallways also pose risks of contagion: at York, all blocks share a hallway, and everyone, including quarantined individuals, must use the hallway to access services. Augustin Decl. at ¶ 19.
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42. These crowded conditions, in both sleeping and social areas, and the shared objects (bathrooms, sinks, etc.) maximize the likelihood that COVID-19 will spread rapidly across the facilities, infecting vulnerable detainees. Amon Decl. at ¶ 42.
43. We have already seen this kind of spread in other facilities. In New York City, for example, where the testing began earlier than in Pennsylvania, jails have become an epicenter of infectious spread. At the Rikers Island Jail in New York City, 21 inmates and 17 correctional staff tested positive for coronavirus as of March 23, 2020. Amon Decl. at ¶ 38.
44. There is growing evidence of contagion and inadequate medical care within the facilities where Plaintiffs are detained. Even before the quarantine, plaintiffs from each facility reported having issues receiving adequate medical care. See Augustin Decl. at ¶ 12; Pratt Decl. at ¶ 4-5; Stubbs Decl. at ¶¶ 9, 10. Since COVID-19 has become a known public health threat, the facilities have failed to take precautions. New individuals have been admitted without screening at Clinton, creating a heightened risk that the virus will be introduced into the facility. Pratt Decl. at ¶ 13; Idowu Decl. at ¶ 16. Mr. Augustin was assigned to work in admissions at York, where he comes into physical contact with people being brought into the facility who may be infected and contagious but asymptomatic. Augustin Decl. at ¶
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15; Golob Decl. at ¶ 6. At Pike, individuals have been transferred into new units, risking transmission across units. Stubbs Decl. at ¶ 18.
45. Where measures are taken, they are insufficient to prevent spread across the facility. For example, Pike had a quarantine unit, but the unit housed about 50 people, threatening to spread infection more widely. Thakker Decl. at ¶ 15. York had two quarantine units, called “cohort,” with 60-70 inmates in each, living in a large unit as described above. Baranoski Decl. at ¶ 6. Also, in York, one inmate was given the job of serving food to a sick person in the quarantine unit, and would move in and out of that unit and back to his dorm, without personal protective equipment. Augustin Decl. at ¶ 18. At all three facilities, guards in regular contact with detained individuals have not worn gloves or masks. Augustin Decl. at ¶ 14; Thakker Decl. at ¶ 17; Idowu Decl. at ¶ 15. Even medical workers sometimes are not wearing masks at York. Juarez Decl. at ¶ 15. Plaintiffs are concerned that guards may be infected and may be spreading the illness through the facility: at Clinton, a guard came in sick recently and has since been out for 4-6 days. Pratt Decl. at ¶ 14; Idowu Decl. at ¶ 15.
46. The failure to perform tests of staff who have ongoing community contacts presents a daily risk of introduction of the virus into the detention facility. The possibility of asymptomatic transmission means that monitoring fever of staff or detainees is also inadequate for identifying all who may be infected and
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preventing transmission. This is also true because not all individuals infected with COVID-19 report fever in early stages of infection. Amon Decl. at ¶ 42.
47. A lack of proven cases of COVID-19 where there is little to no testing is functionally meaningless for determining if there is a risk for COVID-19 transmission in a community or institution. Golob Decl. at ¶ 7. In other jurisdictions where testing has been made available to correctional officers who enter and leave facilities regularly, the rates of infection are high. Amon Decl. at ¶¶ 38, 39. These officers are further vectors of the virus: like detainees, they may be asymptomatic while still contagious. As a result, it is a question of when, not if, the virus will be introduced into these immigration detention facilities.
48. Once introduced, it will be impossible to stop the spread of the virus within the facility, where social distancing measures are impossible. CDC guidance specifically recommends implementing social distancing strategies to increase the physical space between incarcerated and detained persons, “ideally 6 feet between all individuals, regardless of the presence of symptoms,” but Defendants continue to hold Plaintiffs in conditions where they sleep an arm’s reach away from each other in a room full of people with whom they share bathrooms and eating spaces. Amon Decl. ¶¶ 47-48.
49. Even were the Defendants to implement the specific ICE guidance for cohorting stringently across the facilities – which they have not done -- these actions
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will not prevent the introduction of the virus and its spread within the facility because of the potential for asymptomatic transmission from facility staff or other individuals in ICE custody. Amon Decl. at ¶ 45. Moreover, the size of the cohort that Defendants used at the Pike facility—a block of 48 men—threatens to expose many individuals to the virus. Thakker Decl. York has a similar practice, “cohorting” the entire block, which is about 60 people. Baranoski Decl. at ¶ 6. Given that York’s housing is dormitory style and open, this practice puts the entire block is at risk of exposure.
C. Continued ICE Detention is Unsafe for Those Most Vulnerable to COVID-19. 50. Without a vaccine or cure for COVID-19, mitigating the risk of
contracting virus is the only known way to protect those who are most vulnerable to serious harm from infection. Golob Decl. at ¶ 10; Amon Decl. at ¶ 23.
51. Because the risk of infection is at its zenith in detention centers where social distancing measures are impossible to implement, where people share common spaces that are not regularly sanitized, and where individuals are regularly exposed to potential vectors of infection, public health experts with experience in detention and correctional settings have recommended release of vulnerable individuals from custody. Golob Decl. at ¶ 14; Amon Decl. at ¶¶ 48-49.
52. High risk individuals who become infected will not receive adequate treatment. Immigration detention facilities lack adequate medical care infrastructure to address the strain of an outbreak. Amon Decl. at ¶ 35. As a result, detained
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individuals who are age 45 and over or are any age with medical conditions that put them at high risk of illness if infected by COVID-19 are at grave risk of severe illness and death and should be released.
53. If they are not released before the virus spreads through the prison, ill detainees will likely be unable to access necessary medical care, including positive pressure ventilation and, in extreme cases, extracorporeal mechanical oxygenation. See Golob Decl. at ¶ 8. This is because an outbreak among detainees and corrections staff will strain the limited medical infrastructure in the rural counties in which these detention facilities are located. Once infection spreads throughout the detention center, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will die. Amon Decl. at ¶ 41. Thus, high risk individuals should be released from detention centers before it is too late.
D. Plaintiffs Must Be Released from ICE Custody Because They Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19. 54. Plaintiffs in this case are all individuals who are especially vulnerable
to serious illness and death if they are infected with COVID-19, but ICE nonetheless continues to detain at York County Prison, Pike County Correctional Facility, and
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Clinton County Correctional Facility while they await the adjudication of their immigration cases.
55. Bharatkumar G. Thakker. Mr. Thakker is a 65-year-old citizen of India. He has been detained by ICE at Pike County Correctional Facility for the last 27 months. Thakker Decl. at ¶¶ 1, 4.
56. Mr. Thakker has lived in the United States since 1973 and has three children, all of whom are U.S. citizens. His wife and mother are also U.S. citizens. ICE detained Mr. Thakker after a shoplifting incident. Id. at ¶ 3.
57. Mr. Thakker has significant health issues. He has a heart stent put in over ten years ago, but continues to have health issues, including respiratory issues. He also continues to have trouble with breathing. His kidneys are declining in health – the most recent reading showed his kidneys were functioning at 30% to 35% -- and he will soon need dialysis. He also has high blood pressure, high cholesterol, and a history of seizures. He takes 11 medications a day. Id. at ¶¶ at 6-8.
58. Since being detained, Mr. Thakker twice has been sent from the prison to the community hospital, once in March or April 2018 and again in July 2019. Id. at ¶ 10. Both times he reported feeling dizzy and short of breath. The second time, they told him he may have suffered a heart attack. Id. at ¶¶ at 9-10. Two days ago, one of his cell mates began coughing and feeling dizzy. On March 23, Mr. Thakker
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began experiencing the same symptoms. Despite the early onset of symptoms, neither person has been tested for COVID-19. Id. at ¶ at 18.
59. Mr. Thakker is critically vulnerable to severe illness or death from COVID-19 because of his age and significant health issues. Amon Decl. at ¶ 12.
60. Courtney Stubbs. Mr. Stubbs is a 52-year-old citizen of Jamaica who has lived in the United States since 1991. Stubbs Decl. at ¶ 1. He has a U.S. fiancée and 9-year-old son. Id. at ¶ 2; Arizzi Decl. at 1. Mr. Stubbs has been detained by ICE at Pike County Correctional Facility since June 2019. Stubbs Decl. at ¶ 7. ICE detained him despite his continued compliance with his Order of Supervision (OSUP), which he was on for 14 years. Id. at ¶¶ 5-6. ICE has been unable to remove him because Jamaica has repeatedly refused to accept him after reviewing his medical records. Id. at ¶ 7; Arizzi Decl. at ¶ 5.
61. Mr. Stubbs takes 12 pills a day for his various medical ailments. Stubbs Decl. at ¶ 3. Some pills are because he had a kidney transplant in 2014 and he needs medicine to ensure his body does not reject the transplant. Id. at ¶ 4. He also has Type II diabetes and heart stents. Id.
62. Mr. Stubbs is critically vulnerable to severe illness or death from COVID-19 because of his diabetes, kidney condition, and his other serious health issues. Amon Decl. at ¶ 13.
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63. Last week, Mr. Stubbs’ fiancé contacted prison officials, ICE, and the Governor about Mr. Stubbs’ health conditions and his high risk of severe illness or death. Arizzi Decl. at ¶¶ 6-8. The ICE officer assigned to Mr. Stubbs’ case told her he was not a doctor and did not know what the facility was doing to protect detainees. Id. at 6. Prison officials did not respond to her. Id. at ¶¶ 7-8.
64. Meiling Lin. Ms. Lin is a 45-year-old citizen of China. Lin Decl. at ¶ 1. She is detained by ICE at York County Prison. Id. She fled China after being forcibly sterilized by the Chinese government and was detained on arrival in the United States. Id. ¶¶ 2, 5. She is appealing a decision by an Immigration Judge denying her asylum to the Board of Immigration Appeals. Id. at ¶ 2.
65. Ms. Lin has chronic hepatitis B, which she has had for over ten years and suffers from severe chronic pain and other medical complications as a result of her forced sterilization surgery. Id. at ¶ 4-8.
66. Ms. Lin is critically vulnerable to severe illness or death from COVID19 because of her of her hepatitis B, liver disease and other significant health problems. Amon Decl. at ¶ 14.
67. Jean H.C. Augustin. Mr. Augustin is a 34-year-old citizen of Haiti. Augustin Decl. at ¶ 1. He is detained by ICE at York County Prison. Id. at ¶ 2. He came to the U.S. when he was 15 years old and has been living in the U.S. for the
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past 18 years. Id. He is seeking relief under the Convention Against Torture (CAT). Id. at ¶ 3.
68. Mr. Augustin suffers from diabetes, high blood pressure, chronic anemia, nerve issues. Id. at ¶¶ 4-6. at Mr. Augustin also has a myriad of health issues stemming from a gunshot injury, with pieces of the bullet still lodged in his body. Id. at ¶ 6. He has had a number of medical emergencies while at York County Prison and as a result has had to be hospitalized multiple times. Id. at ¶¶ 10-11.
69. Mr. Augustin is critically vulnerable to severe illness or death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 14a.
70. Rodolfo Agustín Juarez Juarez. Mr. Juarez is a 21-year-old asylum seeker from El Salvador. Juarez Decl. at ¶ 1. He is detained by ICE at York County Prison. His asylum application is before the Executive Office for Immigration Review (“EOIR”). Id. at ¶ 4.
71. Mr. Juarez suffers from diabetes and has had a fever, persistent cough, and trouble breathing for the past week. Id. at ¶¶ 5-6. He has not been tested for COVID-19 and has been told by correctional officers that COVID-19 tests are not available at York. Id. at ¶ 11.
72. Mr. Juarez is critically vulnerable to severe illness and death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 15.
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73. Adebodun Adebomi Idowu. Mr. Idowu is a 57-year-old from Nigeria. Idowu Decl. at ¶ 1. He is detained by ICE at Clinton County Correctional Facility.4 He has lived in the United States since 2012 and has a U.S. citizen wife. Id. at ¶ 2. He is applying for relief under the Convention Against Torture (CAT) and has been detained for 17 months. Id. at ¶¶ 2-3.
74. Mr. Idowu suffers from Type II diabetes, high blood pressure, and high cholesterol. Id. at ¶ 4. He receives medication for these conditions, including insulin and metformin. Id.
75. Mr. Idowu has been hospitalized three times while at Clinton. Each hospitalization was after Clinton failed to provide him with his diabetes medication. Id. at ¶ 5. His most recent hospitalization was in December 2019 and after he was not provided insulin for two days. Id. at ¶ 8. His sugar spiked to a dangerous level of 600/mL. Id. Mr. Idowu lost consciousness and was taken to the emergency room. Id. He spent two nights at the hospital before being brought back to Clinton County Correctional Facility. Id.
76. Mr. Idowu is critically vulnerable to severe illness or death from COVID-19 because of his chronic health conditions. Amon Decl. at ¶ 16.
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77. Catalino Domingo Gomez Lopez. Mr. Gomez Lopez is a 51-year-old Guatemalan national detained by ICE at York County Prison. Gomez Lopez Decl. ¶ at 1. He is seeking relief under the Convention Against Torture (CAT). Id. His case is pending before the Third Circuit Court of Appeals. Id.
78. Since being detained in November 2018, Mr. Gomez Lopez has had the flu four times. Id. ¶ 5. The most recent time was beginning in mid-February 2020; he was ill for four weeks, during which time he had a fever and a persistent cough. Id. at. ¶ 5. He had trouble sleeping because of the cough and coughed so much he started to cough blood. Id.
79. Mr. Gomez Lopez is critically vulnerable to severe illness and death from COVID-19 because of his persistent viral infections. Amon Decl. at ¶ 16a.
80. Rigoberto Gomez Hernandez. Mr. Gomez Hernandez is a 52-yearold Mexican national. Gomez Hernandez Decl. at ¶ 1. He was granted non-LPR cancellation of removal on January 16, 2020, but remains detained by ICE at Pike County Prison because the government appealed the decision to the Board of Immigration Appeals (BIA).
81. Mr. Gomez Hernandez has multiple chronic health issues. He is diabetic and currently receiving treatment for an ulcer. Id. at ¶ 4.
82. Mr. Gomez Hernandez is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 18.
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83. Henry Pratt. Mr. Pratt is a 50-year-old citizen of Liberia. Pratt Decl. at ¶ 1. He is a lawful permanent resident and has been detained for three years. Id. at ¶ 2. He was placed into proceedings after fraud, forgery, and theft charges. Id. He is detained by ICE at Clinton County Correctional Facility.
84. Mr. Pratt suffers from Type II diabetes and high blood pressure. Id. at ¶ 4. He receives medication for these conditions. Id.
85. Mr. Pratt is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 19.
86. Mayowa Abayomi Oyediran. Mr. Oyediran is a forty-year-old asylum seeker from Nigeria. Oyediran Decl. at ¶¶ 1-3. He has been detained by ICE since November 7, 2019. He is awaiting a decision on his asylum case, which was heard by an immigration judge on March 10, 2020. Id. ¶ at 3.
87. Mr. Oyediran has severe asthma and has an infection in his lungs. Id. ¶¶ at 3-7. York County Prison has not provided him with an inhaler or treatment for the lung infection. Id. at ¶¶ 5-6. He also has a history of high blood pressure and high cholesterol. Id. at 8.
88. Mr. Oyediran is critically vulnerable to severe illness and death from COVID-19 because of his severe asthma. Amon Decl. at ¶ 20.
89. Mansyur. Mr. Mansyur is a 41-year-old citizen of Indonesia. Mansyur Decl. He has been detained by ICE at Pike County Prison since December 19, 2019.
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He is a Christian Indonesian who is seeking relief from removal. Id. at ¶ 2. The Board of Immigration Appeals (BIA) recently granted an Emergency Stay of Removal; his Motion to Reopen before the BIA is pending. Id.
90. Mr. Mansyur has diabetes, thyroid issues, and high blood pressure. Id. at ¶ 3. He receives medication for these medical issues. Id. at ¶ 4.
91. Mr. Mansyur is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 21.
92. Agus Prajoga. Mr. Prajoga is a 48-year-old citizen of Indonesia. Prajoga Decl. at ¶ 2. He has been detained by ICE at Pike County Prison since January 13, 2020. He has a Motion to Reopen pending based on changed country conditions regarding the treatment of Christians in Indonesia. Id.
93. Mr. Prajoga has diabetes, cholesterol, high blood pressure, and hepatitis B. Id. at ¶ 3. He takes medication for these conditions. Id. at ¶ 4.
94. Mr. Prajoga is critically vulnerable to severe illness and death from COVID-19 because of his diabetes and hepatitis, as well as other health problems. Amon Decl. at ¶ 22.
95. Dexter Anthony Hillocks. Mr. Hillocks is a 54-year-old lawful permanent resident who has lived in the United States since 2000. Hillocks Decl. at ¶ 2. He is a citizen of Trinidad & Tobago. Id. He is currently detained at Pike County Correctional Facility where he has been detained by ICE since 2015. Id. He was
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placed into proceedings after a conviction for criminal use of a communication facility under 18 Pa.C.S. § 7512. Id. at ¶ 3. Despite a recent Third Circuit Court of Appeals decision that reversed and vacated his order of removal, he remains detained pending further proceedings. Id. at ¶ 4.
96. Mr. Hillocks has several serious health problems. Seven months ago, he was diagnosed with leukemia. Id. at ¶ 6. He does not yet know the full extent of his cancer diagnosis. Id. He also has diabetes, high blood pressure, high cholesterol, and anemia. Id. at ¶¶ 5, 7-8. He takes insulin for his diabetes and also takes medication for his high blood pressure and cholesterol. Id.
97. Mr. Hillocks is critically vulnerable to severe illness and death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 17.
E. ICE Continues to Expose Plaintiffs to Dangerous Conditions of Confinement Despite Being Advised of These Dangers 98. Public health measures across the country, including in Pennsylvania,
demonstrate the widespread recognition that the only clinically recommended course of action to protect individuals who have medical conditions that make them vulnerable to serious illness or death from COVID-19 is to practice social distancing and increased hygiene. Only these practices mitigate the risk of contracting this novel virus that has no cure. Golob Decl. at ¶ 10; Amon Decl. at ¶ 23.
99. CDC guidance for detention centers and prisons specifically recommends implementing social distancing strategies to increase the physical
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space between people, “ideally 6 feet between all individuals, regardless of the presence of symptoms”. Amon Decl. at ¶ 47.
100. None of the ICE facilities are following CDC guidance in relation to social distancing, putting all detainees, and especially those at high risk of severe disease and death, in jeopardy. Amon Decl. at ¶ 48. Plaintiffs are forced to sleep in crowded dorms that do not allow six feet of distance from each other, see Pratt Decl. at ¶ 7; Idowu Decl. at ¶ 11; Augustin Decl. at ¶16, or are housed three to an eightfoot-by-twelve-foot cell, with two people sharing a bunk bed, and with a shared toilet and sink between all three, Thakker Decl. at ¶ 11.
101. Nor will the policy of “cohorting” prevent the spread of the virus to Plaintiffs. Contrary to CDC recommendations to cohort individually, ICE cohorts many people together, 48 to a room at Clinton and 60 to a room at York. Even if ICE is to implement this policy at the facilities, asymptomatic transmission will allow individuals to infect others before showing the signs that would trigger the cohorting measures.
102. CDC guidance on correctional and detention facilities emphasizes that there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff and transfer of incarcerated/detained persons. Amon Decl. at ¶ 46. ICE claims to be following CDC guidance at its facilities. Id. But asymptomatic transmission of the virus means that monitoring fever of staff or
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detainees is inadequate for identifying all who may be infected and preventing transmission.
103. Defendants also expose Plaintiffs to unsanitary conditions that increase the risk of infection and spread. They must use common toilets and showers, Augustin Decl. at ¶ 20; Idowu Decl. at ¶ 13, which individual detainees clean for a dollar a day. They have no control over their soap rations or access to other sanitization products. See Stubbs Decl.at ¶ 16.
104. Defendants have been aware of the serious hygiene issues at their facilities, including York. Stakeholders sent a detailed letter to Ms. Flores-Lund and Warden Doll in July 2019 detailing various deficiencies in hygiene, sanitation and medical care, and thus these officials are or should have been aware of these serious problems at York County Prison. See Ruiz Decl. at ¶ 3. To date, York Country Prison has not implemented any changes. Id. at ¶ 12.
105. On March 13, 2020, as infection rates began to increase in Pennsylvania at an alarming rate, the American Civil Liberties Foundation (ACLU) of Pennsylvania sent a letter to Defendant Flores-Lund, and other agency officials, alerting them to the high risk of COVID-19 infection in detention facilities and the dangerous health outcomes of an infection for vulnerable individuals. Ex. 20.
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106. Neither Ms. Flores-Lund nor any other agency official has responded to the letter, and there has been no indication that ICE has released or is releasing vulnerable persons.
107. CDC guidance recognizes that incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced. Amon Decl. at ¶ 46. All of the risks are present here, where Plaintiffs cannot practice social distancing, share common spaces and touch common surfaces, and where new individuals and staff come into the facility each day.
108. Yet ICE continues to detain Plaintiffs, and many other medically vulnerable people, in contradiction of medical advice. Even if ICE has implemented the screening measures the agency claims to be implementing, which they have not, these measures are insufficient to prevent introduction of the virus into a setting where it will spread like wildfire.
LEGAL FRAMEWORK A. Immigrant Detainees are Entitled to Constitutional Due Process
Protections Against Exposure to Infectious Disease. 109. Immigrant detainees, even those with prior criminal convictions, are civil detainees entitled to the same Fifth and Fourteenth Amendment due process
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protections as any other pretrial detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); E. D. v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019).5
110. Due process rights for civil detainees mean that they are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”).
111. “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” Sharkey, 928 F.3d at 307 (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). Put differently, to assess whether a condition constitutes impermissible punishment, “[w]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232. Conditions must be assessed in their totality. Id. at 233.
5 The Fifth Amendment requires the federal Defendant-Respondents to provide due process protections to Plaintiffs. The Fourteenth Amendment requires the state Defendant-Respondents to provide the same due process.
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112. The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it “fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” for those in custody. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989); see also Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999, 1008 (3d Cir. 1983) (explaining that conditions are cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” such as the “necessity” of “habitable shelter,” as measured under “contemporary standards of decency”).
113. Courts in this Circuit have repeatedly found such “unsanitary, unsafe, or otherwise inadequate conditions” sufficient to state a Due Process claim. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); see Grohs v. Lanigan, No. 16-7083, 2019 WL 150061, at *11 (D.N.J. Apr. 5, 2019) (allegations of exposure to “extreme heat combined with lack of potable water, as well as generally unsanitary conditions” sufficient to state a conditions-of-confinement claim under the Fourteenth Amendment).
114. Conditions that would violate the Eighth Amendment are more than enough to also violate a civil detainee’s due process rights. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth
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Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).
115. To prevail on a claim that conditions of confinement violate the Eighth Amendment, Plaintiffs must meet two requirements: (1) the deprivation alleged must be, objectively, “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the detainee’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
116. The Supreme Court has recognized that it violates the Eighth Amendment to crowd prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)); see also Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681, at *13 (M.D. Pa. May 11, 2017), report and recommendation adopted, 2007 WL 9718672 (M.D. Pa. June 1, 2017).
117. Plaintiffs can establish deliberate indifference based on circumstantial evidence that the risk is obvious. The obviousness of the risk the Plaintiffs face, by itself, is enough to allow a factfinder to conclude that defendants know of the risk. Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Put another way, deliberate
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indifference may be shown through circumstantial evidence. Farmer, 511 U.S. at 842 (explaining that “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”).
118. Due process rights may be violated even before a detainee is exposed to disease. Because the Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety[,]’” Helling v. McKinney, 509 U.S. at 33. (quoting DeShaney, 489 U.S. at 200), “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them[.]” Id.
B. Defendants Are Violating Plaintiff’s Constitutional Due Process Rights.
119. The conditions at the ICE Facilities described above, supra ¶¶ 35-49, are sufficient to demonstrate that Plaintiffs’ constitutional due process rights are being violated. Keeping at-risk Plaintiffs detained in such close proximity to one another and without the sanitation necessary to combat the spread of the virus serves no legitimate purpose. Nor is detention under these circumstances rationally related to the enforcement of immigration laws.
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120. Plaintiffs’ due process rights are also being violated because their conditions of confinement place them at serious risk of being infected with COVID19 and Defendants are being deliberately indifferent to this critical safety concern.
121. There is no question that COVID-19 poses a serious risk to Plaintiffs. COVID-19 is highly contagious, and can cause severe illness and death. See supra ¶¶ 23-28. Plaintiffs are at a heightened risk because of their age and/or underlying health conditions. See supra ¶¶ 29-31, 59, 62,66, 69, 72, 76, 79, 82, 85, 88, 91, 94, 97.
122. Defendants are aware of and have completely disregarded the serious risk that COVID-19 poses to Plaintiffs. See supra ¶ 105 (ACLU March 13, 2020 letter).
123. The risk that COVID-19 poses to Plaintiff is also obvious, including to Defendants. Medical experts for the Department of Homeland Security have also identified the risk of COVID-19 spreading to ICE detention centers.6 John Sandweg, a former acting director of ICE, has written publicly about the need to release nonviolent detainees because ICE detention centers “are extremely susceptible to outbreaks of infectious diseases” and “preventing the virus from being introduced
6 See March 19, 2020 letter from Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH to House and Senate Committees on Homeland Security, available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020Letter-to-Congress.pdf.
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into these facilities is impossible.”7 Prisons and jails around the country are already releasing non-violent detainees because the risk of contagion is overwhelming.8
124. The circumstances of this case make clear that release is the only means to ensure compliance with Plaintiffs’ due process rights. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with underlying medical conditions. See supra ¶¶ 32-34. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
C. ICE Regularly Uses Its Authority To Release People Detained In Custody Because They Suffer Serious Medical Conditions.
125. ICE has a longstanding practice of prosecutorial discretion, which demonstrates that the agency understands that its authority extends to— and includes— humanitarian releases from custody. The agency has routinely exercised

7 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent

Detainees.”

The Atlantic (March 22, 2020), available at

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/.

8 See Order, Supreme Court of New Jersey, Docket No. 084230 (March 22,

2020) (ordering release of most county jail detainees), available at

https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF; United States v. Stephens, No. 15-

cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (concluding that the

“unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic”

constituted compelling circumstances to adjust a defendant’s bail conditions and release

him, even though there was “not yet a known outbreak among the jail and prison

populations” when the order was issued).

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its authority to release particularly vulnerable detainees. As former Deputy Assistant Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-Strait explains, “ICE has exercised and still exercises discretion for purposes of releasing individuals with serious medical conditions from detention.” Strait Decl. at ¶ 3.
126. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A governmentcontracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings. See Lorenzen-Strait Decl. ¶ 15.
127. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating against detention. See Strait Decl. at ¶¶ 10-14. For example, under 8 C.F.R. § 212.5(b)(1), ICE has routinely exercised its discretion to release particularly vulnerable detainees. Id. at 4-11.
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128. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention. See Strait Decl. at ¶ 11.
129. While ICE officers may be exercising discretion less frequently in recent years, the statutory and regulatory authority underlying the use of prosecutorial discretion in custodial determinations remains in effect. See Straight Decl. at ¶ 13.
130. Consistent with the Due Process clause of the Fifth Amendment to the U.S. Constitution, ICE must release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has the authority to release immigrants from custody and has exercised this authority in the past indicates that the remedy Plaintiffs request is neither unprecedented nor unmanageable for the agency.
D. This Court Has Authority to Order Plaintiffs’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here.
131. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
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132. This authority extends to “placing limits on a prison’s population” when necessary to ensure compliance with the Constitution. 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) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
133. The circumstances of this case make clear that release is the only means to ensure compliance with the Fifth Amendment’s prohibition against punitive detention. Plaintiffs’ medical conditions put them at grave risk of severe illness or death if they contract COVID-19. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with pre-existing medical conditions. Yet defendants are detaining vulnerable Plaintiffs under conditions where they are forced into close contact with many other detainees and officers. By continuing detention in these circumstances, Defendants are subjecting Plaintiffs to unreasonable harm. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
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CLAIM FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of
Confinement) 134. The forgoing allegations are re-alleged and incorporated herein. 135. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it fails to satisfy its affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety for those in custody. The federal government also violates substantive due process when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment. 136. By detaining Plaintiffs in the ICE Facilities, Defendants are subjecting Plaintiffs to a heightened risk of contracting COVID-19, for which there is no vaccine and no cure. Plaintiffs are particularly vulnerable to serious medical complications from COVID-19 infection and are risk of illness and death as long as they are held in detention. By subjecting Plaintiffs to this risk Defendants are maintaining detention conditions that amount to punishment and fail to ensure safety and health in violation of Plaintiffs’ due process rights.
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137. Likewise, the continued detention of Plaintiffs at the ICE Facilities is deliberately indifferent to Plaintiffs’ serious medical needs because only releasing Plaintiffs from custody can adequately protect them from COVID-19. Defendants are both aware of the serious risk posed by COVID-19 and are failing to take the only action that can respond to Plaintiffs’ medical needs, which is to release Plaintiffs.
PRAYER FOR RELIEF WHEREFORE Plaintiffs request that the Court grant the following relief:
a. Issue a Writ of Habeas Corpus on the ground that their continued detention violates the Due Process Clause and order Plaintiffs’ immediate release, with appropriate precautionary public health measures;
b. In the alternative, issue injunctive relief ordering Defendants to immediately release Plaintiffs, with appropriate precautionary public health measures, on the grounds that their continued detention violates Plaintiffs’ constitutional due process rights;
c. Issue a declaration that Defendants’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including all people over ages forty-five and older and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause;
d. Award Plaintiffs their costs and reasonable attorneys’ fees in this action
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under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and e. Grant any other and further relief that this Court may deem fit and proper.

Dated: March 24, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) *

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American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org *Petition for permission to file pro hac vice forthcoming
50

 
 APPEAL,CASREF,CV19,EMERG
United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:20−cv−00480−JEJ−MCC

Thakker et al v. Doll et al Assigned to: Chief Judge John E. Jones, III Referred to: Magistrate Judge Martin C. Carlson Related Cases: 1:20−cv−01013−JEJ−MCC
1:20−cv−00562−JEJ
Case in other court: 3rd Circuit, 20−01906 Cause: 28:2241 Petition for Writ of Habeas Corpus (IMMIGRATION)
Plaintiff

Date Filed: 03/24/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainees Jurisdiction: U.S. Government Defendant

Bharatkumar G. Thakker

represented by Cecillia D Wang American Civil Liberties Union Foundation 39 Drumm St. San Francisco, CA 94111 415−343−0775 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David C Fathi ACLU National Prison Project 915 15th Street, NW 7th Floor Washington, DC 202 393−4930 Email: dfathi@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eunice H Cho ACLU National Prison Project 915 15th St NW 7th Floor Washington, DC 20005 202−568−6616 Email: echo@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Tan ACLU Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212) 284−7303 Email: mtan@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat American Civil Liberities Union Foundation 125 Broad St., 18th Fl. New York, NY 10004 212−549−2620

Email: ojadwat@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang ACLU Foundation Immigrants' Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0783 Email: skang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak American Civil Liberties Union of PA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 412−681−7864 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994−2513 Email: carla.graff@dechert.com PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 (215) 592−1513 Email: enyborg−burch@aclupa.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner Dechert LLP 2929 Arch St., Cira Centre Philadelphia, PA 19104 215−994−2000 Email: Kelly.Krellner@dechert.com PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder ACLU of Pennsylvania PO Box 60173 Philadelphia, PA 19102 215−592−1513 x147 Email: mtalukder@aclupa.org PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller Dechert, LLP Cira Centre, 2929 Arch Street Philadelphia, PA 19104

Plaintiff Adebodun Adebomi Idowu

215−994−2062 Email: thomas.miller@dechert.com ATTORNEY TO BE NOTICED
Vanessa L. Stine ACLU of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 215.592.1513 x145 Email: vstine@aclupa.org ATTORNEY TO BE NOTICED
Will W. Sachse Dechert LLP Circa Centre 2929 Arch Street Philadelphia, PA 19104 215−994−2496 Email: will.sachse@dechert.com ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner

Plaintiff Courtney Stubbs

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address)

Plaintiff Rigoberto Gomez Hernandez

PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE

Plaintiff Rodolfo Agustin Juarez Juarez

ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Meiling Lin

Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Henry Pratt

Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Henry Pratt 2135 S. 61st Street Philadelphia, PA 19142 856−312−6709 Email: combssean31@gmail.com PRO SE
Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jean Herdy Christy Augustin

Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Jean Herdy Christy Augustin 2428 S. 72nd Street Philadelphia, PA 19142 PRO SE
Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi

Plaintiff Mayowa Abayomi Oyediran

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Agus Prajoga

represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mansyur

Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Catalino Domingo Gomez Lopez

Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dexter Anthony Hillocks

Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice H Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla G Graff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Erika Nyborg−Burch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneeba S Talukder (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Fazal Ghaffar T.S.N.
Plaintiff Juan Antonio Gumbs Navarro

Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Will W. Sachse (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robinson Augustin Yoc
Plaintiff Andrew Davis
Plaintiff Abdul Mohammed

Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address)

Plaintiff Mikhail Viktorovich Goloverya
Plaintiff Oleg Zhuiko

PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak

Plaintiff Stephen Brown
Plaintiff D.F.
Plaintiff Ajarhi Roberts

(See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A Krellner (See above for address) ATTORNEY TO BE NOTICED
Thomas James Miller (See above for address) ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant Xiu Cheng zheng TERMINATED: 04/07/2020
V. Defendant Clair Doll in his official capacity as Warden of York County Prison
Defendant Angela Hoover In her official capacity as Warden of Clinton County Correctional Facility
Defendant Craig A. Lowe In his official capacity as Warden of Pike

Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) ATTORNEY TO BE NOTICED
represented by Robert M. Gamburg Law Offices of Robert M. Gamburg 1500 Walnut Street 22nd Floor Philadelphia, PA 19102 (215)567−1486 Fax: 2159406661 Email: robert@gamburglaw.com ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson U.S. Attorney's Office 228 Walnut Street Harrisburg, PA 17101 717−221−4482 Email: joanne.sanderson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Butler United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Butler (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address)

County Correctional Facility
Defendant Simona Flores−Lund In her official capacity as Field Office Director, Enforcement and Removal Operations, US Immigration and Customs Enforcement
Defendant Matthew Albence In his official capacity as Acting Director, US Immigration and Customs Enforcement
Defendant Chad Wolf In his official capacity as Acting Secretary, US Department of Homeland Security
Amicus Amici Curiae Public Health and Human Rights Experts

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Butler (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Butler (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Butler (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) ATTORNEY TO BE NOTICED
Michael Butler (See above for address) ATTORNEY TO BE NOTICED
represented by John J. Grogan Langer Grogan & Diver P.C. 1717 Arch Street Suite 4020 Philadelphia, PA 19103 215.320.5660 Email: jgrogan@langergrogan.com ATTORNEY TO BE NOTICED

Date Filed 03/24/2020
03/24/2020
03/24/2020 03/24/2020

# Docket Text
1 COMPLAINT against Clair Doll ( Filing fee $400, Receipt Number 0314−5044519), filed by Bharatkumar G. Thaker. (Attachments: # 1 Civil Cover Sheet)(aaa) (Entered: 03/24/2020)
2 EXHIBITS by Bharatkumar G. Thaker. (Attachments: # 1 1, # 2 2, # 3 3, # 4 4, # 5 5, # 6 6, # 7 7, # 8 8, # 9 9, # 10 10, # 11 11, # 12 12, # 13 13, # 14 14, # 15 15, # 16 16, # 17 17, # 18 18, # 19 19, # 20 20)(aaa) (Entered: 03/24/2020)
3 NOTICE of Appearance by Vanessa L. Stine on behalf of Bharatkumar G. Thaker (Stine, Vanessa) (Entered: 03/24/2020)
4 NOTICE of Appearance by Will W. Sachse on behalf of All Plaintiffs (Sachse, Will) (Entered: 03/24/2020)

03/24/2020 03/24/2020
03/25/2020 03/25/2020
03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020
03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020

5 NOTICE of Appearance by Thomas James Miller on behalf of All Plaintiffs (Miller, Thomas) (Entered: 03/24/2020)
6 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Muneeba S Talukder on behalf of All Plaintiffs Attorney Muneeba Talukder is seeking special admission. Filing fee $ 50, receipt number 0314−5044688.. (Talukder, Muneeba) (Entered: 03/24/2020)
7 MOTION for Temporary Restraining Order and/or Preliminary Injunction by Bharatkumar G. Thaker. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 03/25/2020)
8 Unopposed MOTION to Exceed Page Limitation on Memorandum of Law in Support of Motion for TRO and/or PI by Bharatkumar G. Thaker. (Attachments: # 1 Exhibit(s) Ex 1 [Proposed] Memorandum of Law in Support of Motion for TRO/PI, # 2 Proposed Order)(Walczak, Witold) (Entered: 03/25/2020)
9 ORDER granting 8 Motion for Leave to File Excess Pages (eo) (Entered: 03/25/2020)
10 Brief in Support of Temporary Restraining Order and/or Preliminary Injunction by Bharatkumar G. Thaker. (Attachments: # 1 Declaration of Witold Walczak re exhibits, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6, # 8 Exhibit(s) 7, # 9 Exhibit(s) 8, # 10 Exhibit(s) 9, # 11 Exhibit(s) 10, # 12 Exhibit(s) 11)(Walczak, Witold) Modified on 3/26/2020 (aaa). (Entered: 03/25/2020)
DOCKET ANNOTATION: Petitioner, Muneeba Talukder, and Associate Counsel bar status verified. (pjr) (Entered: 03/25/2020)
11 SPECIAL ADMISSIONS FORM APPROVED as to Muneeba S. TalukderSigned by Honorable John E. Jones, III on 3/25/2020. (mfa) (Entered: 03/25/2020)
DOCKET ANNOTATION: Counsel is advised to file the brief in support of Doc. 8 as a separate entry using the event: Civil Events Motions and Related Filings Responses and Replies (Briefs)− Brief in Support (Do not use for Summary Judgment Motions). (pjr) (Entered: 03/25/2020)
DOCKET ANNOTATION: Counsel is advised to refile Doc. 10 − Document filed is a brief. (pjr) (Entered: 03/25/2020)
12 BRIEF IN SUPPORT re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Bharatkumar G. Thaker. (Attachments: # 1 Exhibit(s) Declaration of Witold Walczak, # 2 Exhibit(s) Ex. 1, # 3 Exhibit(s) Ex. 2, # 4 Exhibit(s) Ex. 3, # 5 Exhibit(s) Ex. 4, # 6 Exhibit(s) Ex. 5, # 7 Exhibit(s) Ex 6, # 8 Exhibit(s) Ex. 7, # 9 Exhibit(s) Ex. 8, # 10 Exhibit(s) Ex. 9, # 11 Exhibit(s) Ex. 10, # 12 Exhibit(s) Ex. 11)(Walczak, Witold) (Entered: 03/25/2020)
13 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Carla G Graff on behalf of All Plaintiffs Attorney Carla G. Graff is seeking special admission. Filing fee $ 50, receipt number 0314−5045188.. (Graff, Carla) (Entered: 03/25/2020)
14 ORDER The Respondents−Defendants shall file a response to the Petitioners−Plaintiffs Motion for Temporary Restraining Order before the opening of business on Monday, March 30, 2020. (eo) (Entered: 03/25/2020)
15 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Erika Nyborg−Burch on behalf of All Plaintiffs Attorney Erika Nyborg−Burch is seeking special admission. Filing fee $ 50, receipt number 0314−5045786.. (Nyborg−Burch, Erika) (Entered: 03/25/2020)
DOCKET ANNOTATION: Petitioner, Carla Graff, and Associate Counsel bar status verified. (pjr) (Entered: 03/25/2020)
DOCKET ANNOTATION: Petitioner, Erika Nyborg−burch, and Associate Counsel bar status verified. (pjr) (Entered: 03/25/2020)
16 SPECIAL ADMISSIONS FORM APPROVED as to Carla G. Graff. Signed by Honorable John E. Jones, III on 03/25/20. (rw) (Entered: 03/25/2020)

03/25/2020 03/25/2020 03/25/2020
03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/27/2020 03/27/2020
03/27/2020 03/27/2020
03/27/2020
03/27/2020

17 SPECIAL ADMISSIONS FORM APPROVED as to Erika Britt Nyborg−Burch. Signed by Honorable John E. Jones, III on 3/25/20. (rw) (Entered: 03/25/2020)
18 NOTICE of Appearance by Vanessa L. Stine on behalf of All Plaintiffs (Stine, Vanessa) (Entered: 03/25/2020)
19 Unopposed MOTION to Exceed Page Limitation by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Sanderson, Joanne) (Entered: 03/25/2020)
20 ORDER granting 19 Motion for Leave to File Excess Pages (eo) (Entered: 03/26/2020)
21 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Muneeba S Talukder on behalf of All Plaintiffs Attorney Eunice Cho is seeking special admission. Filing fee $ 50, receipt number 0314−5046418.. (Talukder, Muneeba) (Entered: 03/26/2020)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa) (Entered: 03/26/2020)
22 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Kelly A Krellner on behalf of All Plaintiffs Attorney Kelly Krellner is seeking special admission. Filing fee $ 50, receipt number 0314−5046587.. (Krellner, Kelly) (Entered: 03/26/2020)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa) (Entered: 03/26/2020)
23 SPECIAL ADMISSIONS FORMS APPROVED as to Kelly Krellner and Eunice Cho (eo) (Entered: 03/26/2020)
24 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Vanessa L. Stine on behalf of All Plaintiffs Attorney Omar Jadwat is seeking special admission. Filing fee $ 50, receipt number 0314−5047033.. (Stine, Vanessa) (Entered: 03/26/2020)
25 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Vanessa L. Stine on behalf of All Plaintiffs Attorney Michael Tan is seeking special admission. Filing fee $ 50, receipt number 0314−5047034.. (Stine, Vanessa) (Entered: 03/26/2020)
26 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Muneeba S Talukder on behalf of All Plaintiffs Attorney David Fathi is seeking special admission. Filing fee $ 50, receipt number 0314−5047035.. (Talukder, Muneeba) (Entered: 03/26/2020)
DOCKET ANNOTATION: Petitioning attorneys and associate counsel's bar status verified. (aaa) (Entered: 03/27/2020)
27 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker of Supplemental Authorities Pursuant to Local Rule 7.36 (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s))(Miller, Thomas) (Entered: 03/27/2020)
28 NOTICE of Appearance by John J. Grogan on behalf of Amici Curiae Public Health and Human Rights Experts. (Grogan, John) (Entered: 03/27/2020)
29 MOTION for Leave to File Brief of Amici Curiae Public Health and Human Rights Experts by Amici Curiae Public Health and Human Rights Experts. (Attachments: # 1 Proposed Order, # 2 Certificate of Service, # 3 Brief of Amici Curiae)(Grogan, John) (Entered: 03/27/2020)
30 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by John J. Grogan on behalf of Amici Curiae Public Health and Human Rights Experts Attorney Susanna Buergel is seeking special admission. Filing fee $ 50, receipt number 0314−5048053.. (Grogan, John) (Entered: 03/27/2020)
31 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by John J. Grogan on behalf of Amici Curiae Public Health and Human Rights Experts Attorney Darren Johnson is seeking special admission. Filing fee $ 50, receipt number 0314−5048055.. (Grogan, John) (Entered: 03/27/2020)

03/27/2020 03/27/2020 03/28/2020
03/29/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020
03/30/2020 03/30/2020
03/30/2020
03/30/2020

32 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by John J. Grogan on behalf of Amici Curiae Public Health and Human Rights Experts Attorney David Kimball−Stanley is seeking special admission. Filing fee $ 50, receipt number 0314−5048058.. (Grogan, John) (Entered: 03/27/2020)
33 Letter from Petitioners' Counsel re: Factual Updates . (Attachments: # 1 Declaration, # 2 Exhibit(s) 21, # 3 Exhibit(s) 22, # 4 Exhibit(s) 23, # 5 Exhibit(s) 24, # 6 Exhibit(s) 25, # 7 Exhibit(s) 26, # 8 Exhibit(s) 27)(Stine, Vanessa) (Entered: 03/27/2020)
34 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker Rule 7.36 Notice of Supplemental Authority (Attachments: # 1 Exhibit(s) Castillo v Barr)(Sachse, Will) (Entered: 03/28/2020)
35 BRIEF IN OPPOSITION re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Exhibit(s))(Sanderson, Joanne) (Entered: 03/29/2020)
36 ORDER granting 29 Motion for Leave to File. Amici Curiae Public Health and Human Rights Experts are hereby granted leave to file their proposed Amicus Curiae brief and the Clerk is to enter such brief into the record of this proceeding. Signed by Honorable John E. Jones, III on 3/30/2020 (ve) (Entered: 03/30/2020)
37 BRIEF OF AMICI CURIAE PUBLIC HEALTH AND HUMAN RIGHTS EXPERTS filed by Amici Curiae Public Health and Human Rights Experts. (ve) (Entered: 03/30/2020)
38 SPECIAL ADMISSIONS FORM APPROVED as to Susanna Buergel Signed by Honorable John E. Jones, III on 3/30/2020. (mfa) (Entered: 03/30/2020)
39 SPECIAL ADMISSIONS FORM APPROVED as to Darren Johnson Signed by Honorable John E. Jones, III on 3/30/2020. (mfa) (Entered: 03/30/2020)
40 SPECIAL ADMISSIONS FORM APPROVED as to David Kimball−Stanley Signed by Honorable John E. Jones, III on 3/30/2020. (mfa) (Entered: 03/30/2020)
41 MOTION for Leave to File Reply Brief by COB Today by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 03/30/2020)
42 ORDER granting 41 Motion for Leave to File (eo) (Entered: 03/30/2020)
43 SPECIAL ADMISSIONS FORM APPROVED as to Omar C. Jadwat. Signed by Honorable John E. Jones, III on 3/30/20. Attorney Omar C. Jadwat added for Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin,Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, and Bharatkumar G. Thaker. (rw) (Entered: 03/30/2020)
44 SPECIAL ADMISSIONS FORM APPROVED as to Michael Tan. Signed by Honorable John E. Jones, III on 3/30/20. Attorney Michael Tan added for Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks,Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt,Courtney Stubbs, and Bharatkumar G. Thaker. (rw) (Entered: 03/30/2020)
45 SPECIAL ADMISSIONS FORM APPROVED as to David Fathi. Signed by Honorable John E. Jones, III on 3/30/20. Attorney David C Fathi added for Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez,Jean Herdy Christy Augustin,Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga,Henry Pratt, Courtney Stubbs,and Bharatkumar G. Thaker. (rw) (Entered: 03/30/2020)

03/30/2020
03/31/2020
04/03/2020 04/06/2020 04/06/2020 04/07/2020 04/07/2020 04/07/2020 04/07/2020 04/07/2020 04/07/2020 04/09/2020
04/09/2020 04/09/2020 04/10/2020

46 REPLY BRIEF re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Declaration, # 2 Exhibit(s) Ex. 28, # 3 Exhibit(s) Ex. 29, # 4 Exhibit(s) Ex. 30, # 5 Exhibit(s) Ex. 31, # 6 Exhibit(s) Ex. 32, # 7 Exhibit(s) Ex. 33, # 8 Exhibit(s) Ex. 34)(Sachse, Will) (Entered: 03/30/2020)
47 ORDER 1. The Petitioners Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.3. This TRO will expire on April 13, 2020 at 5:00 p.m.4. No later than noon on April 7, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction.5. The Petitioners may file a response before the opening of business on April 10, 2020. (eo) (eo). (Entered: 03/31/2020)
48 Unopposed MOTION to Exceed Page Limitation by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Sanderson, Joanne) (Entered: 04/03/2020)
49 ORDER granting 48 Motion for Leave to File Excess Pages (eo) (Entered: 04/06/2020)
50 MOTION to Intervene by Xiu Cheng zheng. (Attachments: # 1 Brief, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Proposed Order, # 5 Proposed Complaint, # 6 Certificate of Service)(Gamburg, Robert) (Entered: 04/06/2020)
DOCKET ANNOTATION: Counsel is advised to file the brief in support of Doc. 50 as a separate entry using the event: Civil Events Motions and Related Filings Responses and Replies (Briefs)− Brief in Support (Do not use for Summary Judgment Motions). (pjr) (Entered: 04/07/2020)
51 BRIEF IN SUPPORT re 50 MOTION to Intervene filed by Xiu Cheng zheng.(Gamburg, Robert) (Entered: 04/07/2020)
52 AFFIDAVIT in Opposition re 50 MOTION to Intervene Certificate of Non Concurrence filed by Xiu Cheng zheng.(Gamburg, Robert) (Entered: 04/07/2020)
DOCKET ANNOTATION: Counsel is advised to refile Doc. 52. Document filed is only a Certificate of Concurrence/non−concurrence. (pjr) (Entered: 04/07/2020)
53 ORDER denying 50 Motion to Intervene (eo) (Entered: 04/07/2020)
54 RESPONSE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf to 47 Order on Motion for TRO,, . (Attachments: # 1 Exhibit(s))(Sanderson, Joanne) (Entered: 04/07/2020)
55 MOTION for Extension of Time to File Brief and Leave to File an Overlength Brief filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 04/09/2020)
56 BRIEF IN OPPOSITION re 55 MOTION for Extension of Time to File Brief and Leave to File an Overlength Brief filed filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Sanderson, Joanne) (Entered: 04/09/2020)
57 ORDER granting 55 Motion for Extension of Time to File (eo) (Entered: 04/09/2020)
58 NOTICE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf of Supplemental Authority (Attachments: # 1 Verma Decision, # 2 Umbarbaev Decision)(Sanderson, Joanne) (Entered: 04/10/2020)

04/13/2020 04/13/2020 04/16/2020
04/17/2020 04/17/2020
04/17/2020 04/20/2020 04/20/2020 04/20/2020 04/20/2020

59 RESPONSE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf to Court's directive regarding conditions. (Sanderson, Joanne) (Entered: 04/13/2020)
60 ORDER Extending TRO. See order for details. (eo) (Entered: 04/13/2020)
61 BRIEF IN SUPPORT re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction, 55 MOTION for Extension of Time to File Brief and Leave to File an Overlength Brief filed, 10 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Declaration, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 04/16/2020)
62 AMENDED COMPLAINT against All Defendants, filed by Catalino Domingo Gomez Lopez, Henry Pratt, Bharatkumar G. Thaker, Rodolfo Agustin Juarez Juarez, Courtney Stubbs, Mayowa Abayomi Oyediran, Agus Prajoga, Meiling Lin, Mansyur, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Adebodun Adebomi Idowu, Dexter Anthony Hillocks. (Attachments: # 1 Exhibit(s) Ex. 35 (Dr. Amon 4−15−20))(Walczak, Witold) (Entered: 04/17/2020)
63 EXHIBIT S (CONFIDENTIAL) TO AMENDED CLASS ACTION COMPLAINT by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker re 62 Amended Complaint,. (Attachments: # 1 Exhibit(s) Ex. 36 Ghaffar Decl., # 2 Exhibit(s) Ex. 37 Gumbs Navarra Decl., # 3 Exhibit(s) Ex. 38 T.S.N. Decl., # 4 Exhibit(s) Ex. 39 Augustin Yoc Decl., # 5 Exhibit(s) Ex. 40 Davis Decl., # 6 Exhibit(s) Ex. 41 Mohammed Decl,, # 7 Exhibit(s) Ex. 42 Goloverya Decl., # 8 Exhibit(s) Ex. 43 Zhuiko Decl., # 9 Exhibit(s) Ex. 44 Brown Decl., # 10 Exhibit(s) Ex. 45 D.F. Decl., # 11 Exhibit(s) Ex. 46 Sarimbi Decl., # 12 Exhibit(s) Ex. 47 PIRC Decl., # 13 Exhibit(s) Ex. 48 Pratt Supp. Decl.)(Walczak, Witold) (Entered: 04/17/2020)
64 MOTION to Certify Class and Appoint Class Counsel by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 04/17/2020)
65 Consent MOTION to Proceed Pseudonymously by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 04/20/2020)
66 MEMORANDUM OF LAW by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Agus Prajoga, Henry Pratt, Courtney Stubbs, Bharatkumar G. Thaker re 65 Consent MOTION to Proceed Pseudonymously . (Walczak, Witold) (Entered: 04/20/2020)
DOCKET ANNOTATION: Counsel is advised to file a proposed order and a certificate of concurrence/non−concurrence for Doc. 64. (pjr) (Entered: 04/20/2020)
67 CERTIFICATE of Counsel re 64 MOTION to Certify Class and Appoint Class Counsel Non−concurrence by Respondents/Defendants by Witold J. Walczak on behalf of All Plaintiffs (Walczak, Witold) (Entered: 04/20/2020)

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04/20/2020 04/20/2020 04/21/2020 04/21/2020 04/21/2020
04/21/2020 04/21/2020 04/21/2020
04/21/2020 04/23/2020 04/23/2020
04/23/2020

68 EXHIBIT Proposed Order re Class Certification by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 64 MOTION to Certify Class and Appoint Class Counsel. (Walczak, Witold) (Entered: 04/20/2020)
70 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Vanessa L. Stine on behalf of All Plaintiffs Attorney Cecillia Wang is seeking special admission. Filing fee $ 50, receipt number 0314−5071322.. (Stine, Vanessa) (Entered: 04/20/2020)
71 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Vanessa L. Stine on behalf of All Plaintiffs Attorney Stephen Kang is seeking special admission. Filing fee $ 50, receipt number 0314−5071324.. (Stine, Vanessa) (Entered: 04/20/2020)
DOCKET ANNOTATION: Counsel is advised to file a certificate of service for Doc. 69. (pjr) (Entered: 04/21/2020)
DOCKET ANNOTATION: Petitioners Cecillia Wang, Stephen Kang, and Associate Counsel bar status verified. (pjr) (Entered: 04/21/2020)
72 ORDER 1.Plaintiffs D.F. and T.S.N. may proceed pseudonymously, using their initials;2.Plaintiffs shall be referred to by their initials on the docket, in all pleadingsand other documents related to this litigation, and in all proceedings heldbefore this Court; and3.Defendants are prohibited from disclosing to any third parties any personally−identifying information that could reveal the identity of Plaintiffs. (eo) (Entered: 04/21/2020)
73 SPECIAL ADMISSIONS FORM APPROVED as to Cicellia Wang (eo) (Entered: 04/21/2020)
74 SPECIAL ADMISSIONS FORM APPROVED as to Stephen Kang (eo) (Entered: 04/21/2020)
75 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko of Supplemental Authorities Pursuant to Local Rule 7.36 (Attachments: # 1 Exhibit(s) Supplemental Authorities)(Graff, Carla) (Entered: 04/21/2020)
DOCKET ANNOTATION: Doc. 69 deleted and refiled as Doc. 75. (pjr) (Entered: 04/21/2020)
76 Letter from Counsel for Plaintiffs Regarding Factual Updates. (Attachments: # 1 Declaration, # 2 Exhibit(s) 49, # 3 Exhibit(s) 50, # 4 Exhibit(s) 51)(Stine, Vanessa) (Entered: 04/23/2020)
77 Unopposed MOTION to Exceed Page Limitation for Memorandum in Support of Plaintiffs Motion for Class Certification by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Krellner, Kelly) (Entered: 04/23/2020)
78 BRIEF IN SUPPORT of Memorandum in Support of Motion for Class Certification and Appointment of Counsel re 77 Unopposed MOTION to Exceed Page Limitation for Memorandum in Support of Plaintiffs Motion for Class Certification, 64 MOTION to Certify Class and Appoint Class Counsel filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy

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

Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Declaration Witold Walczak, # 2 Declaration Michael Tan, # 3 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 04/23/2020)
79 ORDER granting 77 Motion for Leave to File Excess Pages (eo) (Entered: 04/24/2020)
80 NOTICE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf of Supplemental Authorties and Factual Updates (Attachments: # 1 Unpublished Opinion(s))(Sanderson, Joanne) (Entered: 04/24/2020)
81 NOTICE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf of Supplemental Authority (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s))(Sanderson, Joanne) (Entered: 04/24/2020)
82 MOTION to Strike 80 Notice and 80−1 as Improper and Untimely, or in the Alternative, Leave to Respond by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 04/24/2020)
83 MOTION for Leave to File document out of time by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Proposed Order, # 2 Cetificate of Partial Concurrence)(Sanderson, Joanne) (Entered: 04/24/2020)
84 BRIEF IN SUPPORT re 83 MOTION for Leave to File document out of time filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Sanderson, Joanne) (Entered: 04/24/2020)
85 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 61 Brief in Support,,, of Supplemental Authorities Pursuant to Local Rule 7.36 (Attachments: # 1 Exhibit(s) Supplemental Authorities)(Krellner, Kelly) (Entered: 04/24/2020)
86 ORDER In the interest of judicial fairness, we will not strike the Defendants provided Notices, but we will allow Plaintiffs to respond accordingly. Because our TRO expires on Monday, we will require any such response to be FILED by the close of business tomorrow, Saturday April 25, 2020. (eo) (Entered: 04/24/2020)
87 REPLY BRIEF re 82 MOTION to Strike 80 Notice and 80−1 as Improper and Untimely, or in the Alternative, Leave to Respond To Defendants' April 24, 2020, Notice of Supplemental Authority and Factual Updates filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Exhibit(s) Ex. 52, # 2 Exhibit(s) Ex. 53, # 3 Exhibit(s) Ex. 54, # 4 Exhibit(s) Ex. 55, # 5 Exhibit(s) Ex. 56, # 6 Exhibit(s) Ex. 57 (unpublished opinions))(Walczak, Witold) (Entered: 04/25/2020)
88 ORDER Respondents motion to accept out of time filing (Doc. 83) is granted. Docket Entry No. 80 is accepted as if timely filed. (eo) (Entered: 04/27/2020)

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89 ORDER 1. The Petitioners Motion for Preliminary Injunction (Doc. 7) is GRANTED in part and DENIED in part as follows:a. The Motion is GRANTED with respect to Petitioners Thakker, Stubbs and Hillocks.b. Petitioners Thakker, Stubbs and Hillocks shall remain released from custody until either (1) the Governor of the Commonwealth of Pennsylvania lifts the COVID−19 state of emergency or (2) the CDC lifts its guideline on social distancing; whichever comes first. Should neither event occur within the intervening period, we shall conduct a telephonic status conference on July 6, 2020 at 2:00 p.m. Further instructions regarding the status call shall be given by future Order of Court.c. Petitioners Thakker, Stubbs and Hillocks shall abide by all of the conditions of release previously set forth in our Order dated April 13, 2020. (Doc. 60).d. The Motion is DENIED with respect to Petitioners Idowu, Gomez−Hernandez, Juarez, Pratt, Augustin, Oyediran, and Lopez.2. Petitioners Idowu, Gomez−Hernandez, Juarez, Pratt, Augustin,Oyediran, and Lopez shall voluntarily surrender themselves to the institution from which they were released by 4:00 p.m. on April 28, 2020.3. Upon their return to detention, Respondents shall individually quarantine Petitioners Idowu, Gomez−Hernandez, Juarez, Pratt, Augustin, Oyediran, and Lopez for a period of fourteen (14) days. (eo) (eo). (Entered: 04/27/2020)
90 Emergency MOTION for Reconsideration re 89 Order,,,,, Motion for Reconsideration and Application for Stay of Order Granting in Part and Denying in Part Motion for Preliminary Injunction by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Krellner, Kelly) (Entered: 04/28/2020)
91 BRIEF IN SUPPORT of Motion for Reconsideration and Application for Stay of Order Granting in Part and Denying in Part Motion for Preliminary Injunction re 90 Emergency MOTION for Reconsideration re 89 Order,,,,, Motion for Reconsideration and Application for Stay of Order Granting in Part and Denying in Part Motion for Preliminary Injunction filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Declaration K. Krellner Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Declaration, # 10 Declaration, # 11 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 04/28/2020)
92 ORDER granting in part and denying in part 90 Motion for Reconsideration. See order for details (eo) (Entered: 04/28/2020)
93 NOTICE OF APPEAL in NON−PRISONER Case as to 89 Order,,,,, 92 Order on Motion for Reconsideration by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. Filing Fee and Docket Fee PAID. Filing fee $ 505, receipt number 0314−5078431. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Krellner, Kelly) (Entered: 04/28/2020)
95 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Catalino Domingo Gomez Lopez, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Adebodun Adebomi Idowu, Henry Pratt re 92 Order on Motion for Reconsideration (Stine, Vanessa) (Entered: 04/28/2020)
96 ORDER Respondents briefing deadline relative to the pending class certification motion (Doc. 64) as well as their response to the Amended Complaint is STAYED

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pending further Order of this Court. (eo) (Entered: 04/30/2020)
97 STIPULATION Re: Discovery Schedule by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 05/01/2020)
98 MOTION for Preliminary Injunction (Classwide) by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 05/01/2020)
99 Unopposed MOTION to Exceed Page Limitation for Plaintiffs Memorandum of Law in Support of Plaintiffs Emergency Motion for Preliminary Injunction by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Exhibit(s) Plaintiffs' Memo in Support of Plaintiffs Emergency Motion for Preliminary Injunction, # 2 Proposed Order)(Krellner, Kelly) (Entered: 05/02/2020)
100 ORDER granting 99 Motion for Leave to File Excess Pages (eo) (Entered: 05/04/2020)
101 SCHEDULING ORDER: Telephone Status Conference set for 5/11/2020 11:00 AM before Honorable John E. Jones III.See order for referral information and call instructions. (eo) (Entered: 05/04/2020)
102 BRIEF IN SUPPORT of Plaintiffs' Emergency Motion for Class−Wide Preliminary Injunction re 98 MOTION for Preliminary Injunction (Classwide), 99 Unopposed MOTION to Exceed Page Limitation for Plaintiffs Memorandum of Law in Support of Plaintiffs Emergency Motion for Preliminary Injunction filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Declaration K. Krellner, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6, # 8 Exhibit(s) 7, # 9 Exhibit(s) 8, # 10 Exhibit(s) 9, # 11 Exhibit(s) 10, # 12 Exhibit(s) 11, # 13 Exhibit(s) 12, # 14 Exhibit(s) 13, # 15 Exhibit(s) 14, # 16 Exhibit(s) 15, # 17 Exhibit(s) 16, # 18 Exhibit(s) 17, # 19 Exhibit(s) 18, # 20 Exhibit(s) 19, # 21 Exhibit(s) 20, # 22 Exhibit(s) 21, # 23 Exhibit(s) 22, # 24 Exhibit(s) 23, # 25 Exhibit(s) 24, # 26 Exhibit(s) 25, # 27 Exhibit(s) 26, # 28 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 05/04/2020)
103 CERTIFICATE OF SERVICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 102 Brief in Support,,,,, Plaintiffs' Emergency Motion for Class−Wide Preliminary Injunction (Krellner, Kelly) (Entered: 05/04/2020)

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104 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 05/04/2020)
105 SCHEDULING ORDER:1. Petitioners will augment the record and may supplement their openingbrief on their Motion for Class−Wide Preliminary Injunction by May 15,2020.2. Respondents may supplement the record and shall file their oppositionsto the Petitioners Motions for Class Certification and Class−WidePreliminary Injunction by May 22, 2020.3. Petitioners shall file a reply to the Motion for Class−Wide PreliminaryInjunction by May 27, 2020.4. Petitioners shall file a reply to the Motion for Class Certification by June2, 2020.5. The Court shall convene a proceeding relative to the Motion for Class−Wide Preliminary Injunction on June 9, 2020 at 10:00 a.m., if necessary.Whether this proceeding shall be by video, telephone or in−person shallbe determined at later date.(eo) (Entered: 05/11/2020)
106 STATUS REPORT by Catalino Domingo Gomez Lopez, Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 05/11/2020)
107 RESPONSES TO Discovery and Deficiency Letter. (Attachments: # 1 Letter) (kjn) (Entered: 05/13/2020)
109 ORDER − IT IS ORDERED as follows: The parties shall review the latestdocument disclosures and, if necessary, notify the court tomorrow of any remaining discovery disputes. Signed by Magistrate Judge Martin C. Carlson on May 13, 2020. (kjn) (Entered: 05/13/2020)
111 ORDER re: the resolution of these discovery matters. Signed by Magistrate Judge Martin C. Carlson on May 14, 2020. (kjn) (Entered: 05/14/2020)
112 DECLARATION by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Jean Herdy Christy Augustin, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Henry Pratt, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 98 MOTION for Preliminary Injunction (Classwide) . (Attachments: # 1 Declaration Ex. 27, # 2 Declaration Ex. 28, # 3 Declaration Ex. 29, # 4 Declaration Ex. 30, # 5 Declaration Ex. 31, # 6 Declaration Ex. 32, # 7 Declaration Ex. 33, # 8 Declaration Ex. 34, # 9 Declaration Ex. 35, # 10 Declaration Ex. 36, # 11 Declaration Ex. 37)(Stine, Vanessa) (Entered: 05/15/2020)
113 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 05/18/2020)
114 Unopposed MOTION to Exceed Page Limitation by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Sanderson, Joanne) (Entered: 05/19/2020)
115 ORDER granting 114 Motion for Leave to File Excess Pages (eo) (Entered: 05/20/2020)
116 MOTION for Order to Show Cause and a Finding of Contempt by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Sanderson, Joanne) (Entered: 05/22/2020)
117 BRIEF IN SUPPORT re 116 MOTION for Order to Show Cause and a Finding of Contempt filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Sanderson, Joanne) (Entered: 05/22/2020)
118 BRIEF IN OPPOSITION re 64 MOTION to Certify Class and Appoint Class Counsel, 98 MOTION for Preliminary Injunction (Classwide) and Amended Petition for Writ of Habeas Corpus and Complaint for Emergency Injunctive Relief filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Exhibit(s))(Sanderson, Joanne) (Entered: 05/22/2020)
119 MOTION to Withdraw as Attorney by Jean Herdy Christy Augustin, Henry Pratt. (Attachments: # 1 Proposed Order)(Sachse, Will) (Entered: 05/22/2020)

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120 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 05/25/2020)
121 ORDER− As such, any prior commitment orders entered againstPlaintiffs Pratt and Augustin remain in full force. Thus, to the extent that Plaintiffshave not self−reported, ICE may take whatever steps necessary to immediatelyrecommit them, including apprehending and arresting them as fugitives who areunlawfully violating an order of detention. See order for all details.(eo) (Entered: 05/26/2020)
122 ORDER 1. Petitioners Motion for Leave to Withdraw as Counsel for PlaintiffsHenry Pratt and Jean Augustin, (Doc. 119), is GRANTED.2. The counsel of record are WITHDRAWN as representation for PlaintiffsHenry Pratt and Jean Augustin.3. Petitioners Counsel will SUPPLY the last known addresses forPlaintiffs Henry Pratt and Jean Augustin in a separate filing by June 3,2020.4. The Clerk of Court will CLASSIFY Plaintiffs Henry Pratt and JeanAugustin as pro se Plaintiffs with their last−known contact information,and, when addresses are available, will SERVE copies of this order onthem at those addresses. (eo) (Entered: 05/27/2020)
123 Unopposed MOTION to Exceed Page Limitation for Reply Brief in Support of Petitioners' Emergency Motion for Classwide Preliminary Injunction by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 05/27/2020)
124 REPLY BRIEF re 98 MOTION for Preliminary Injunction (Classwide), 123 Unopposed MOTION to Exceed Page Limitation for Reply Brief in Support of Petitioners' Emergency Motion for Classwide Preliminary Injunction Reply In Support of Emergency Motion for Classwide Preliminary Injunction (pending leave of Court) filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Declaration V. Stine, # 2 Exhibit(s) PI−Ex. 38, # 3 Exhibit(s) PI−Ex. 39, # 4 Exhibit(s) PI−Ex. 40, # 5 Exhibit(s) PI−Ex. 41, # 6 Exhibit(s) PI−Ex. 42, # 7 Exhibit(s) PI−Ex. 43, # 8 Exhibit(s) PI−Ex. 44, # 9 Exhibit(s) PI−Ex. 45, # 10 Exhibit(s) PI−Ex. 46, # 11 Exhibit(s) PI−Ex. 47, # 12 Exhibit(s) PI−Ex. 48, # 13 Exhibit(s) PI−Ex. 49, # 14 Errata PI−Ex. 50, # 15 Exhibit(s) PI−Ex. 51, # 16 Exhibit(s) PI−Ex. 52, # 17 Exhibit(s) PI−Ex. 53, # 18 Exhibit(s) PI−Ex. 54, # 19 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 05/27/2020)
125 DECLARATION by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 98 MOTION for Preliminary Injunction (Classwide), 124 Reply Brief,,,,, Declaration of Witold J. Walczak. (Krellner, Kelly) (Entered: 05/27/2020)
126 ORDER granting 123 Motion for Leave to File Excess Pages (eo) (Entered: 05/28/2020)
127 First MOTION to Exceed Page Limitation for Reply in Support of Motion for Class Certification by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Krellner, Kelly) (Entered: 05/28/2020)

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128 ORDER granting 127 Motion for Leave to File Excess Pages (eo) (Entered: 05/29/2020)
129 SCHEDULING ORDER− Petitioners have recently indicated that they may have need for a factual hearing during which they intend to call witnesses, and we shall thus CANCEL the proceeding previously scheduled for June 9, 2020 and shall SCHEDULE a combined factual hearing and oral argument for June 19, 2020 at 10:00 a.m. Logistical details, including potential access codes or call−in information, will follow at a later date.(eo) (Entered: 05/29/2020)
130 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 06/01/2020)
131 BRIEF IN SUPPORT re 64 MOTION to Certify Class and Appoint Class Counsel filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 06/02/2020)
132 MOTION for Extension of Time to File Reply to Respondents' Response to individual Zadvydas claims, MOTION to Refer Zadvydas claims to one or more magistrate judges by D.F., Fazal Ghaffar, Mikhail Viktorovich Goloverya, Courtney Stubbs, Oleg Zhuiko. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 06/05/2020)
133 Letter from Petitioners' Counsel re: Correction to Respondents' Position on Petitioners' Motion to Refer Zadvydas Claims to Magistrate Judge(s) (ECF No. 132) . (Stine, Vanessa) (Entered: 06/05/2020)
134 STIPULATION (Joint) for Referral of Zadvydas Claims to Magistrate Judge(s) by D.F., Fazal Ghaffar, Mikhail Viktorovich Goloverya, Courtney Stubbs, Oleg Zhuiko. (Stine, Vanessa) (Entered: 06/05/2020)
135 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 06/08/2020)
136 ORDER Petitioners uncontested Motion for an Extension to Time to Respond, it is hereby ORDERED that the motion (Doc. 132) is GRANTED. Petitioners shall reply to the Respondents' response on the individual Zadvydas claims by or before June 30, 2020.(eo) (Entered: 06/09/2020)
Set/Reset Hearings: Prel/Perm Injunction Hearing reset for 6/19/2020 09:30 AM before Chief Judge John E. Jones III. (eo) (Entered: 06/12/2020)
137 SCHEDULING ORDER: Telephone Status Conference set for 6/15/2020 11:00 AM before Chief Judge John E. Jones III. See order for call instructions. (eo) (Entered: 06/12/2020)
138 NOTICE of Appearance by Michael J. Butler on behalf of All Defendants (Butler, Michael) (Entered: 06/12/2020)
139 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 102 Brief in Support,,,,, 78 Brief in Support,,, 98 MOTION for Preliminary Injunction (Classwide), 124 Reply Brief,,,,, 131 Brief in Support,, (Attachments: # 1 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 06/12/2020)
140 MOTION to Dismiss or, MOTION to Strike Count II of Amended Petition by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 06/15/2020)

06/15/2020 06/15/2020 06/15/2020 06/15/2020 06/15/2020 06/15/2020 06/15/2020 06/15/2020 06/16/2020
06/16/2020
06/17/2020
06/18/2020 06/18/2020

141 BRIEF IN SUPPORT re 140 MOTION to Dismiss or MOTION to Strike Count II of Amended Petition filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Butler, Michael) (Entered: 06/15/2020)
142 MOTION in Limine by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Sanderson, Joanne) (Entered: 06/15/2020)
143 BRIEF IN SUPPORT re 142 MOTION in Limine filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Sanderson, Joanne) (Entered: 06/15/2020)
DOCKET ANNOTATION: Doc 144 (Order referring case to Chief MJ Schwab) has been deleted as erroneously filed. (eo) (Entered: 06/15/2020)
144 ORDER The Petitioners shall file a response to the Respondents' Motion to Dismiss or Motion to Strike Count II of the Amended Petition by or before June 22, 2020. The Petitioners' June 30, 2020 briefing deadline on the individual Petitioner's Zadvydas claims is STAYED pending the Court's decision on the pending Motion to Dismiss or Strike. (eo) (Entered: 06/15/2020)
146 ORDER We are in receipt of Respondents Motion in Limine, (Doc. 142), and shallnow order expedited briefing on the matter. Petitioners MAY FILE a brief inopposition by or before June 17, 2020. Respondents may reply by or before June19, 2020. (eo) (Entered: 06/15/2020)
147 MOTION for Extension of Time − 60 Days to File Brief or Retain Counsel by Rodolfo Agustin Juarez Juarez. (kpf) (Entered: 06/15/2020)
148 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 06/15/2020)
149 DECLARATION by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 98 MOTION for Preliminary Injunction (Classwide). (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s))(Stine, Vanessa) Modified on 6/17/2020 (rw). (Entered: 06/16/2020)
150 DECLARATION by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 98 MOTION for Preliminary Injunction (Classwide). (Attachments: # 1 Exhibit(s))(Stine, Vanessa) Modified on 6/17/2020 (rw). (Entered: 06/16/2020)
151 BRIEF IN OPPOSITION re 142 MOTION in Limine filed by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko. (Attachments: # 1 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 06/17/2020)
152 EXHIBIT [Supplemental Exhibits] by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf re 118 Brief in Opposition,. (Sanderson, Joanne) (Entered: 06/18/2020)
153 ORDER In our Order dated May 27, 2020, we gavePetitioners counsel leave to withdraw as Mr. Pratts attorney and directed theClerk of Courts to classify Mr. Pratt as a pro se. (Doc. 122). As such, Mr. Prattmay fully participate in this matter as a pro se plaintiff. Furthermore, Mr. Pratt iswelcome to retain counsel in the future. Any

06/18/2020
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06/25/2020 06/26/2020 06/29/2020
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appearance on his behalf should beproperly entered on the docket.(eo) (Entered: 06/18/2020)
154 NOTICE by Mayowa Abayomi Oyediran, Rodolfo Agustin Juarez Juarez, Stephen Brown, D.F., Andrew Davis, Catalino Domingo Gomez Lopez, Fazal Ghaffar, Mikhail Viktorovich Goloverya, Rigoberto Gomez Hernandez, Dexter Anthony Hillocks, Adebodun Adebomi Idowu, Meiling Lin, Mansyur, Abdul Mohammed, Juan Antonio Gumbs Navarro, Agus Prajoga, Ajarhi Roberts, Courtney Stubbs, Bharatkumar G. Thakker, Robinson Augustin Yoc, Oleg Zhuiko re 102 Brief in Support,,,,, 78 Brief in Support,,, 64 MOTION to Certify Class and Appoint Class Counsel, 98 MOTION for Preliminary Injunction (Classwide) of Supplemental Authority Pursuant to Rule 7.36 (Attachments: # 1 Unpublished Opinion(s))(Krellner, Kelly) (Entered: 06/18/2020)
155 NOTICE by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf (Attachments: # 1 Exhibit(s))(Butler, Michael) (Entered: 06/19/2020)
157 REPLY BRIEF re 142 MOTION in Limine filed by Matthew Albence.(Butler, Michael) (Entered: 06/19/2020)
158 BRIEF IN OPPOSITION re 140 MOTION to Dismiss or MOTION to Strike Count II of Amended Petition filed by D.F., Fazal Ghaffar, Mikhail Viktorovich Goloverya, Courtney Stubbs, Oleg Zhuiko. (Attachments: # 1 Unpublished Opinion(s))(Miller, Thomas) (Entered: 06/22/2020)
159 STATUS REPORT re Plaintiff Idowu by Adebodun Adebomi Idowu. (Walczak, Witold) (Entered: 06/22/2020)
160 ORDER REFERRING CASE to Magistrate Judge Martin C. Carlson − All existing and future discovery disputes in this matter are REFERRED toUnited States Magistrate Judge Martin C. Carlson for resolution. (eo) (Entered: 06/25/2020)
161 NOTICE OF CROSS APPEAL in PRISONER Case as to 89 Order,,,,, by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf. Filing Fee and Docket Fee NOT PAID. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Sanderson, Joanne) (Entered: 06/25/2020)
162 REPLY BRIEF re 140 MOTION to Dismiss or MOTION to Strike Count II of Amended Petition filed by Matthew Albence, Clair Doll, Simona Flores−Lund, Angela Hoover, Craig A. Lowe, Chad Wolf.(Butler, Michael) (Entered: 06/25/2020)
163 Letter to Magistrate Judge Carlson dated 6−26−2020 re: discovery. (kjn) (Entered: 06/29/2020)
165 ORDER 1.The Respondents Motion to Dismiss or Strike Claims of Unlawful Final Order [of] Detention from the Amended Petition (Doc. 140) is GRANTED as follows:a.The individual Zadvydas claims of Petitioners Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F. as set forth in Count II of the Amended Petition are DISMISSED without prejudice to these six individuals filing six separate 28 U.S.C. § 2241 habeas corpus petitions setting forth their individual Zadvydas claims. b.Petitioners counsel shall mark these new actions as related to the instant case and the Clerk of Court SHALL ASSIGN these anticipated new matters to the undersigned with a random co−assignment to a United States Magistrate Judge of this Court for each case. (eo) (Entered: 06/29/2020)
166 STATUS REPORT by Adebodun Adebomi Idowu. (Stine, Vanessa) (Entered: 06/29/2020)
167 ORDER in accordance with the rulings made in the telephonic conference held on June 26, 2020. Signed by Magistrate Judge Martin C. Carlson on June 29, 2020. (kjn) (Entered: 06/29/2020)
168 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Proceedings (via WebEx) held on 6/19/2020, before Chief Judge Jones. Court Reporter Wendy Yinger, Telephone number 717−440−1535. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for

Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2020. Redacted Transcript Deadline set for 7/30/2020. Release of Transcript Restriction set for 9/28/2020. (Yinger, Wendy) (Entered: 06/29/2020)

 
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Case 1:20-cv-00480-JEJ Document 2 Filed 03/24/20 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER et al. Petitioners-Plaintiffs,
vs. CLAIR DOLL et al.
Respondents-Defendants.

Case No. ________

DECLARATION OF WITOLD J. WALCZAK Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. My name is Witold J. Walczak. I am the Legal Director for the American Civil Liberties Union of Pennsylvania and am counsel for PetitionersPlaintiffs. I make this declaration in support of Petitioners’/Plaintiffs’ Verified Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. 2. Attached hereto are true and correct copies of the following materials, identified as lettered exhibits in the petition: Ex. 1 Declaration of Joseph J. Amon, Ph.D. MSPH Ex. 2 Declaration of Dr. Jonathan Louis Golob Ex. 3 Declaration of Petitioner Bharatkumar G. Thakker
1

Case 1:20-cv-00480-JEJ Document 2 Filed 03/24/20 Page 2 of 2

Ex. 4 Declaration of Petitioner Adebodun Adebomi Idowu Ex. 5 Declaration of Petitioner Courtney Stubbs Ex. 6 Declaration of Danielle Arizzi (Petitioner Stubbs’ fiancé) Ex. 7 Declaration of Petitioner Rigoberto Gomez Hernandez Ex. 8 Declaration of Petitioner Rodolfo Agustín Juarez Juarez Ex. 9 Declaration of Petitioner Meiling Lin Ex. 10 Declaration of Petitioner Henry Pratt Ex. 11 Declaration of Petitioner Jean Herdy Christy Augustin Ex. 12 Declaration of Petitioner Mayowa Abayomi Oyediran Ex. 13 Declaration of Petitioner Agus Prajoga Ex. 14 Declaration of Petitioner Mansyur Ex. 15 Declaration of Petitioner Catalino Domingo Gomez Lopez Ex. 16 Declaration of Petitioner Dexter Anthony Hillocks Ex. 17 Declaration of Andrew Lorenzen-Strait Ex. 18 Declaration of Andrew Baranoski, Executive Director of PIRC Ex. 19 Declaration of Monica Ruiz, Executive Director, Casa San Jose Ex. 20 March 13, 2020 Letter from ACLU-PA to Simona Flores-Lund,
Field Office Director, Enforcement and Removal Operations, Philadelphia Office re: ICE Enforcement and COVID-19

Dated: March 24, 2020

/s/ Witold J. Walczak Witold J. Walczak

2

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 1 of 33
Thakker, et al. v. Doll, et al. Plaintiffs exhibits
Exhibit 1

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 2 of 33
Declaration of Joseph J. Amon, Ph.D. MSPH
I, Joseph J. Amon, declare as follows:
Background and Expertise
1. I am an infectious disease epidemiologist, Director of Global Health and Clinical Professor in the department of Community Health and Prevention at the Drexel Dornsife School of Public Health. I also hold an appointment as an Associate in the department of epidemiology of the Johns Hopkins University Bloomberg School of Public Health. My Ph.D. is from the Uniformed Services University of the Health Sciences in Bethesda, Maryland and my Master’s of Science in Public Health (MSPH) degree in Tropical Medicine is from the Tulane University School of Public Health and Tropical Medicine.
2. Prior to my current position, I have worked for a range of non-governmental organizations and as an epidemiologist in the Epidemic Intelligence Service of the US Centers for Disease Control and Prevention. Between 2010 and 2018, I was a Visiting Lecturer at Princeton University, teaching courses on epidemiology and global health. I currently serve on advisory boards for UNAIDS and the Global Fund against HIV, TB and Malaria and have previously served on advisory committees for the World Health Organization.
3. I have published 60 peer-reviewed journal articles and more than 100 book chapters, letters, commentaries and opinion articles on issues related to public health and health policy.
4. One of my main areas of research focus relates to infectious disease control, clinical care, and obligations of government related to individuals in detention settings, in which I have published a number of reports assessing health issues in prison and detention settings and more than a dozen peer-reviewed articles. In 2015-2016, I was a co-editor of a special issue of the British journal, “The Lancet,” on HIV, TB and hepatitis in prisons. I also serve on the editorial boards of two public health journals. My resume is attached as Exhibit A.
Information on COVID-19 and Vulnerable Populations
5. COVID-19 is a coronavirus disease that has reached pandemic status. As of today (3/23), according to the World Health Organization, more than 332,900 people have been diagnosed with COVID-19 in 190 countries or territories around the world and 14,510have died.1 In the United States, about 41,000 people have been diagnosed with the disease and 479 people have died thus far.2 In Pennsylvania, there are 644
1 See https://www.who.int/emergencies/diseases/novel-coronavirus-2019 accessed March 23, 2020. 2 See https://coronavirus.jhu.edu/map.html Accessed March 23, 2010

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 3 of 33
confirmed cases and five deaths thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing. In many settings, the numbers of infected people are growing at an exponential rate.
6. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The specific mechanism of mortality of critically ill COVID-19 patients is uncertain but may be related to virus-induced acute lung injury, inflammatory response, multiple organ damage and secondary nosocomial infections.
7. The World Health Organization (WHO) identifies individuals at highest risk to include those over 60 years of age and those with cardiovascular disease, diabetes, chronic respiratory disease, and cancer.4 The WHO further states that the risk of severe disease increases with age starting from around 40 years.
8. The US CDC identifies “older adults [65 and older] and people of any age who have serious underlying medical conditions” as at higher risk of severe disease and death.5 The CDC identifies underlying medical conditions to include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.6
9. Data from US COVID-19 cases published by the CDC on March 19, 2020, found that hospitalization rates and intensive care unit (ICU) admission rates were nearly identical for individuals aged 45-54 and individuals aged 55-64 (between approximately 20-30% for both groups for hospitalization and between 5-11% for both groups for ICU admission).7 This suggests that individuals >45 years could be considered high risk for severe disease while those ≥54 years could be considered high risk for severe disease and death.
10. Public Health England, the public health authority of the United Kingdom, identifies a broader list of individuals at increased risk of severe illness and who should be “particularly stringent in following social distancing measures”.8 These include: individuals with: chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis; chronic heart
3 See https://www.health.pa.gov/topics/disease/coronavirus/Pages/Coronavirus.aspx accessed March 23, 2020 4 See https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_4 accessed March 21, 2020 5 See https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html accessed March 21, 2020 6 See https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf accessed March 21, 2020 7 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm, accessed March 21, 2020 8 See https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerablepeople/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults accessed March 21, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 4 of 33
disease, such as heart failure; chronic kidney disease; chronic liver disease, such as hepatitis; chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy; diabetes; spleen-related disorders or having had your spleen removed; having a weakened immune system; having a body mass index (BMI) of 40 or above; and those who are pregnant.
Health profile of plaintiffs
11. I have reviewed the declarations of the following individuals: Bharatkumar G. Thakker; Adebodun Adebomi Idowu; Courtney Stubbs; Meiling Lin; Rodolfo Agustín Juarez Juarez; Dexter Anthony Hillocks; Rigoberto Gomez Hernandez; Henry Pratt; Mayowa Abayomi Oyediran; Mr. Mansyur; and Agus Prajoga.
12. Bharatkumar G. Thakker is a 65-year-old citizen of India. He has been detained by ICE at Pike County Correctional Facility for the last 27 months. Including his age, Mr. Thakker has several health conditions, according to his declaration, that put him at high risk for severe illness and death from COVID-19, including chronic kidney disease and high blood pressure and high cholesterol which are associated with cardiovascular disease. He currently reports that he has chills, myalgia, asthenia and dizziness and has been coughing for a few days, and that his cell mate recently started coughing.
13. Courtney Stubbs is a 52-year-old citizen of Jamaica. He has been detained by ICE at Clinton County Correctional Facility since June 2019. Mr. Stubbs has several health conditions, according to his declaration, that put him at high risk for severe illness and death from COVID-19, including diabetes, cardiovascular disease, chronic kidney disease, and immunosuppression stemming from a kidney transplant.
14. Meiling Lin is a 45-year-old citizen of China. She has been detained by ICE at York County Prison since March 2019. Ms. Lin, according to her declaration, she suffers from chronic hepatitis B and liver disease, that puts her at high risk for severe illness and death from COVID-19.
14.a. Jean Herdy Christy Augustin is a 34-year-old citizen of Haiti. He is detained by ICE at York County Prison. According to his declaration, Mr. Augustin suffers from diabetes which puts him at high risk for severe illness and death from COVID-19. Mr. Augustin also has multiple other health issues, including high blood pressure and anemia that might complicate his treatment if infected with the virus causing COVID-19.
15. Rodolfo Agustín Juarez Juarez is a 21-year-old citizen of El Salvador. He has been detained by ICE at York County Prison since February 26, 2020. Mr. Juarez, according to his declaration, suffers from diabetes which puts him at high risk for severe illness and death from COVID-19. In addition, in his declaration he states that he has had a fever, persistent cough, and trouble breathing for the past week, all of which are common symptoms of COVID-19 and, according to current guidance, require testing and isolation. In his declaration, he states that he has not been tested for COVID-19 and

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 5 of 33
has been told by correctional officers that COVID-19 tests are not available at York.
16. Adebodun Adebomi Idowu is a 57-year-old from Nigeria. He has been detained by ICE at Clinton County Correctional Facility for the past 17 months. Mr. Idowu has several health conditions, according to his declaration, that put him at high risk for severe illness and death from COVID-19, including diabetes and high blood pressure and high cholesterol which are associated with cardiovascular disease.
16.b. Catalino Domingo Gomez Lopez is a 51-year-old citizen of Guatemala. He is detained by ICE at York County Prison. According to his declaration, since being detained in November 2018, Mr. Gomez Lopez has had the flu four times. He states that the most recent instance he was ill for four weeks, during which time he had a fever and a cough with hemoptysis (coughing blood). Hemoptysis requires medical assessment as it may be related to a range of serious health conditions, including tuberculosis, lung cancer, and pneumonia (among others). Due to his age and his stated history of hemoptysis, Mr Gomez Lopez may be at high risk for severe illness and death from COVID-19.
17. Dexter Anthony Hillocks is a 54-year-old from Trinidad and Tobago. He has been detained at the Pike County Correctional Facility since 2015. Mr. Hillocks, according to his declaration, has several health conditions that put him at high risk for severe illness and death from COVID-19, including diabetes, high blood pressure and high cholesterol which are associate with cardiovascular disease, and leukemia.
18. Rigoberto Gomez Hernandez is a 52-year-old Mexican national. He is detained by ICE at Pike County Prison. Mr. Gomez Hernandez, according to his declaration, has diabetes, which puts him at high risk for severe illness and death from COVID-19. He also reports that his detention has also caused him mental anguish.
19. Henry Pratt is a 50-year-old citizen of Liberia. He is detained by ICE at Clinton County Correctional Facility. According to his declaration, Mr. Pratt suffers from Type II diabetes and high blood pressure, which puts him at high risk for severe illness and death from COVID-19.
20. Mayowa Abayomi Oyediran is a forty-year-old citizen of Nigeria. He has been detained by ICE since November 7, 2019 at York County Prison. Mr. Oyediran, according to his declaration, has severe asthma and an infection in his lungs, which put him at high risk of severe illness and death from COVID-19. His declaration states that he has not been given an inhaler or any other kind of treatment for his asthma or treatment for his lung infection.
21. Mr. Mansyur is a 41-year-old citizen of Indonesian. He is detained by ICE at Pike County Prison since December 19, 2019. Mr. Mansyur, according to his declaration, has diabetes and high blood pressure, which puts him at high risk for severe illness and death from COVID-19.

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 6 of 33
22. Agus Prajoga is a 48-year-old citizen of Indonesia. He is detained by ICE at Pike County Prison since January 13, 2020. Mr. Parjoga has diabetes and high blood pressure and cholesterol which are associated with cardiovascular disease, which puts him at high risk for severe illness and death from COVID-19.
Understanding of COVID-19 Transmission
23. According to the US CDC, the disease is transmitted mainly between people who are in close contact with one another (within about 6 feet) via respiratory droplets produced when an infected person coughs or sneezes.9 It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.10 People are thought to be most contagious when they are most symptomatic (the sickest), however there is increasing evidence of asymptomatic transmission.11 This suggests that, while hand washing and disinfecting surfaces is advisable, the main strategy for limiting disease transmission is social distancing and that for such distancing to be effective it must occur before individuals display symptoms.
24. Recognizing the importance of social distancing, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. 50 states, 7 territories, and the District of Columbia have taken some type of formal executive action in response to the COVID19 outbreak.12 Through one form or another, these jurisdictions have declared, proclaimed, or ordered a state of emergency, public health emergency, or other preparedness and response activity for the outbreak. Earlier this month Pennsylvania Governor, Tom Wolf, declared a state of emergency, which he buttressed on March 19 with an order closing non-essential businesses.13 On Monday, March 23, 2020, Governor Wolf issued a stay at home order for residents of Bucks, Chester, Delaware, Monroe and Montgomery counties. Philadelphia has been under a stay at home order since Saturday, March 21, 2020.14
9 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html accessed March 21, 2020 10 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html accessed March 21, 2020 11 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html accessed March 21, 2020; See also: Bai Y, Yao L, Wei T, et al. Presumed asymptomatic carrier transmission of COVID-19.JAMA. Published online February 21, 2020. doi:10.1001/jama.2020.2565 and Zhang W, Du RH, Li B, et al. Molecular and serological investigation of 2019-nCoV infected patients: implication of multiple shedding routes. Emerg Microbes Infect. 2020;9(1):386-389. 12 See https://www.astho.org/COVID-19/ accessed March 21, 2020 13 See https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closureorder.pdf 14 See https://www.wtae.com/article/stay-at-home-order-to-begin-tonight-for-several-pa-counties-includingallegheny/31900786 accessed March 23, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 7 of 33
25. As of March 23, in response to the threat of COVID-19 transmission, five states (California; Illinois; New Jersey; New York; and Ohio) prohibit gatherings of any size; nine states prohibit gatherings of >10 individuals (Colorado; Hawaii; Louisiana; Maine; Maryland; Texas; Utah; Vermont and Wisconsin); four states prohibit gatherings of >25 individuals (Alabama; Massachusetts; Oregon and Rhode Island) and eight states prohibit gatherings of >50 individuals. The five states that prohibited gathering have also issued quarantine orders directing residents to stay at home except under certain narrow exceptions.15 These orders are expanding, increasing for example from at least 158 million people in 16 states, nine counties and three cities are being urged to stay home on March 23 to at least 163 million people in 17 states, 14 counties and eight cities being urged to stay home on March 24, 2020.16
26. These public health measures aim to “flatten the curve” of the rates of infection so that those most vulnerable to serious complications from infection will be least likely to be exposed and, if they are the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them.
27. In countries where the virus’s course of infection began earlier, and where death rates grew steadily governments have imposed national emergency measures to prevent contagion from human contact, In Italy and Spain, for example, the governments have imposed national lockdowns to keep people from coming into contact with each other.17
28. In Spain, immigration authorities began gradually releasing people held in closed immigration detention centers (CIEs) on March 18.18 In Belgium, federal authorities released an estimated 300 migrants from detention on March 19 because detention conditions did not allow for safe social distancing.19 The UK government released 300 people from detention centers following legal action which argued that the government had failed to protect immigration detainees from the COVID-19 outbreak and failed to identify which detainees were at particular risk of serious harm or death if they do contract the virus due to their age or underlying health conditions. As part of the legal action, Professor Richard Coker of the London School of Hygiene and Tropical Medicine stated that prisons and detention centers provide “ideal incubation conditions for the rapid spread of the coronavirus, and that about 60% of those in detention could be rapidly infected if the virus gets into detention centers.”20
15 See https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-addresscoronavirus/#socialdistancing accessed March 23, 2020 16 See https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html accessed March 24, 2020 17 See https://www.cnbc.com/2020/03/14/spain-declares-state-of-emergency-due-to-coronavirus.html accessed March 23, 2020 18 See: https://www.lavanguardia.com/politica/20200319/474263064358/interior-abre-puerta-liberar-internoscie.html accessed March 23, 2020 19 See: https://www.demorgen.be/nieuws/300-mensen-zonder-papieren-vrijgelaten-coronavirus-zet-dvz-onderdruk~bf3d626d/ accessed March 23, 2020 20 See: https://www.theguardian.com/uk-news/2020/mar/21/home-office-releases-300-from-detention-centres-amidcovid-19-pandemic accessed March 23, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 8 of 33
Risk of COVID-19 in Immigration Detention Facilities
29. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
30. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care. People live in close quarters and are also subject to security measures which prohibit successful “social distancing” that is needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
31. Based upon the declarations of Bharatkumar G. Thakker; Adebodun Adebomi Idowu; Courtney Stubbs; Meiling Lin and Rodolfo Agustín Juarez Juarez, conditions at Pike County Correctional Facility, York County Prison and Clinton County Correctional Facility do not appear to be adopting the procedures necessary to prevent COVID-19 transmission.
32. In the York facility, plaintiff declarations stated a range of concerns that suggest an inability to control transmission of COVID-19, including: crowding and inability to practice social distancing (e.g., 56 people held in one large area; close seating during meals); potential exposure via a large number of people sharing facilities and objects not frequently disinfected (water fountains, phones and tablets); the lack of availability of tests for infection, which would hamper isolation of infected detainees; and lack of screening or use of masks among facility staff (Declaration of Juarez). The Declaration by Lin on conditions in the York facility similarly highlights crowding and inability to practice social distancing (50 people in one large area with beds 3-4 feet apart; close seating during meals); shared objects and facilities (shared bathrooms, three phones and eleven tablets among 50 people).
33. In the Clinton County facility, the plaintiff declaration by Idowu stated similar concerns including crowding and inability to practice social distancing (72 people in one open unit with bunk beds); lack of staff screening and precautions; lack of screening of new detainees; and potential exposure via shared facilities (bathrooms, sinks, showers) (Declaration of Idowu).
34. In the Pike County facility, plaintiff declarations by Thakker and Stubbs stated similar concerns including crowding and inability to practice social distances (including in social areas and during meals); lack of staff precautions (masks) (Thakker); and the transfer of detainees from one block to another, despite symptoms of illness (Stubbs).
35. Many immigration detention facilities also lack adequate medical care infrastructure to

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 9 of 33
address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals. Based on my review of declarations, it appears that, even without a public health crisis, inadequate provision of medical care led to health complications (Declaration of Idowu). A COVID-19 outbreak would put severe strain on this already strained system.
Risks of COVID-19 to and from Police, First Responders, and Corrections Officers
36. Police, first responders and correctional officers all face an increased risk of COVID19 exposure as they are less able to practice the recommended strategy of social distancing in carrying out their official duties. These officials also potentially present a link from transmission occurring in the community to those who are detained.
37. An increasing number of public safety personnel – police officers, firefighters, EMTs and paramedics have been found to be infected with COVID-19 and a larger number have been ordered into 14-day quarantine at home or in quarters after exposure to an individual with COVID-19. For example, in Kirkland Washington 27 firefighters and two police officers were in quarantine along with four King County (Wash.) EMS paramedics. In San Jose California 77 firefighters were in quarantine.21 More than 140 firefighters were quarantined in Washington DC.22 Six New Jersey police officers tested positive for COVID-19 and another 20 officers were under self-quarantine, as of March 19.23
38. So far, two state prison employees tested positive for COVID-19 in California,24 two in Michigan,25 a county jail officer in Washington state,26 and one Georgia Department of Corrections employee tested positive.27 21 inmates and 17 employees in Rikers Island (NY) have tested positive; an investigator with NYC’s department of corrections died
21 See https://www.policeone.com/coronavirus-covid-19/articles/how-long-to-quarantine-covid-19-exposed-policeofficers-firefighters-emts-and-paramedics-XJnE4WGakSF1wtS0/ accessed March 21, 2020 22 See https://www.firerescue1.com/coronavirus-covid-19/articles/more-than-140-dc-firefighters-quarantined-afterthird-positive-covid-19-test-rHWizxNkyiEbtc6C/ accessed March 21, 2020 23 https://www.nj.com/coronavirus/2020/03/6-officers-test-positive-for-coronavirus-20-others-self-quarantined-njpolice-union-says.html accessed March 21, 2020 See also: “COVID-19 Diagnosed at Essex County Correctional Facility,“ Tapinto.net (Mar. 23, 2020) https://www.tapinto.net/towns/soma/sections/health-andwellness/articles/covid-19-diagnosed-at-essex-county-correctional-facility; 24 See https://www.sacbee.com/news/coronavirus/article241371616.html accessed March 21, 2020 25 See https://www.correctionsone.com/coronavirus-covid-19/articles/2-mich-doc-employees-test-positive-forcovid-19-Hmbc7yRomp3WbtBb/ accessed March 21, 2020 26 See https://www.kitsapsun.com/story/news/2020/03/19/kitsap-county-jail-officer-diagnosed-covid-19-secondcase-connected-county-campus/2881899001/ accessed March 21, 2020 27 See https://www.ajc.com/news/crime--law/employee-inside-prison-tests-positive-forcovid/a40bWvX7LFFERMjoeLggyH/ accessed March 21, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 10 of 33
of COVID-19.28 In Wisconsin, a prison doctor tested positive.29
39. In New Jersey, a member of the medical staff at Elizabeth Detention Center in New Jersey a private immigration detention center tested positive for coronavirus.30 A correctional officer at Bergen County Jail (NJ), which contracts with ICE, also tested positive for COVID-19.31 As a result of these cases, hunger strikes have broken out in three ICE detention centers in New Jersey “as detainees protest what they describe as deteriorating conditions and a failure to adequately address the potential spread of COVID-19”.32
40. If police, first responders, and corrections officers are significantly affected by COVID-19, whether through being infected, exposed by detainees, their fellow officers or in the community, large numbers will be unavailable to work due to self-quarantine or isolation, at the same time that large numbers of detainees who are potentially exposed will need to be put into individual isolation or transferred to advanced medical care, putting tremendous stress on detention facilities.
41. Large numbers of ill detainees and corrections staff will also strain the limited medical infrastructure in the rural counties in which these detention facilities are located. If infection spreads throughout the detention center, overwhelming the center’s own limited resources, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will die.33
Conclusions
42. Current conditions and procedures in place at the three ICE facilities, as described by plaintiff declarations, cannot be seen as sufficient to prevent the introduction of COVID-19 or prevent its rapid transmission among both detainees and staff. The lack
28 See https://www.nbcnewyork.com/news/coronavirus/21-inmates-17-employees-test-positive-for-covid-19-onrikers-island-officials/2338242/ accessed March 23, 2020; See also: Monsy Alvarado, “Coronavirus outbreak locks down Hudson county jail after two inmates test positive,” NorthJersey.com March 22, 2020 https://www.northjersey.com/story/news/coronavirus/2020/03/22/coronavirus-outbreak-locks-down-hudsoncounty-jail/2895687001/. Accessed March 23, 2020 29 See https://fox6now.com/2020/03/19/employee-or-client-at-waupun-prison-tested-positive-for-covid-19/ March 21, 2020 30 See https://www.themarshallproject.org/2020/03/19/first-ice-employee-tests-positive-for-coronavirus accessed March 21, 2020 31 See https://www.insidernj.com/bergen-county-jail-corrections-officer-tests-positive-covid-19/ accessed March 21, 2020 32 See https://www.vice.com/en_us/article/pkew79/immigrants-are-now-on-hunger-strike-in-3-ice-detention-centersover-coronavirus-fears accessed March 21, 2020 33 See https://www.post-gazette.com/news/health/2020/03/20/Rural-counties-in-Pennsylvania-struggle-on-theirown-as-COVID-19-spreads/stories/202003180034 accessed March 23, 2002. Even in regions with highly developed health systems, COVID-19 is straining ability to care, creating cause for alarm for less-equipped health care systems in regions that do not act to mitigate risk of infection. See https://www.nytimes.com/2020/03/12/world/europe/12italy-coronavirus-health-care.html accessed March 23, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 11 of 33
of daily tests of staff who have ongoing community contacts presents a risk of introduction of the virus into the detention facility. The possibility of asymptomatic transmission means that monitoring fever of staff or detainees is also inadequate for identifying all who may be infected and preventing transmission. This is also true because not all individuals infected with COVID-19 report fever in early stages of infection. The lack of widespread testing in communities and the current presence of COVID-19 in all 50 states means that it is impractical to ask detainees about their travel history– all communities should be assumed to have community transmission which is why statewide and national restrictions on movement and gatherings have been put in place. The crowded conditions, in both sleeping areas and social areas, and the shared objects (bathrooms, sinks, etc.) will facilitate transmission.
43. I have also reviewed the guidance ICE first issued on March 15, and most recently updated March 21.34 Most notably, the guidance mentions “social distancing” only once, in the first section entitled “What is ICE doing to safeguard its employees/personnel during this crisis?” The strategies that the guidance outline for the protection of individuals in their custody include: 1) temporarily suspending social visitation in all detention facilities; 2) regularly updating infection prevention and control protocols, and issuing guidance to ICE Health Service Corps (IHSC) staff for the screening and management of potential exposure among detainees; 3) working with state and local health partners to determine if any detainee requires additional testing or monitoring to combat the spread of the virus. These are insufficient to prevent introduction or transmission of COVID-19 in facilities.
44. The guidance further states that “In detention settings, cohorting serves as an alternative to self-monitoring at home.” “Cohorting” is not defined in the guidance, but can be understood in combination with the guidance under the section entitled “How does ICE mitigate the spread of COVID-19 within its detention facilities?” which states that “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. 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.”
45. Even if ICE is to implement this guidance at the facilities, it will not prevent the spread of COVID-19 because of the potential for asymptomatic transmission from other detainees or ICE facility staff of COVID-19, as referred to in paragraph 17. Although the ICE guidance states that individuals at epidemiologic risk will be housed separately, based upon the plaintiffs’ declaration, this practice is not being implemented. This puts plaintiffs’ at increased risk for exposure to COVID-19 as discussed above. The close quarters, the lack of testing and the inability to enforce appropriate social distancing are an urgent problem. Procedures that may have worked for other outbreaks, like flu, will not be sufficient to control COVID-19 and physical
34 See: https://www.ice.gov/covid19 accessed March 23, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 12 of 33
distancing is essential.
46. The ICE guidance repeatedly refers to CDC guidance, for example stating that “ICE reviews CDC guidance daily and continues to update protocols to remain consistent with CDC guidance.” CDC guidance on correctional and detention facilities,35 posted March 23, 2020 reiterates many of the points previously made in this declaration, including: 1) Incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced; 2) There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff and transfer of incarcerated/detained persons; 3) Options for medical isolation of COVID19 cases are limited; 4) Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19; 5) The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants; and 6) Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
47. CDC guidance specifically recommends implementing social distancing strategies to increase the physical space between incarcerated/detained persons “ideally 6 feet between all individuals, regardless of the presence of symptoms” including: 1) increased space between individuals in holding cells, as well as in lines and waiting areas such as intake; stagger time in recreation spaces; restrict recreation space usage to a single housing unit per space; stagger meals; rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table); provide meals inside housing units or cells; limit the size of group activities; reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions.
48. Based upon the plaintiffs’ declarations, none of the ICE facilities are following CDC guidance in relation to social distancing putting all detainees, and especially those at high risk of severe disease and death, in jeopardy. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of individuals who can be considered at high-risk of severe disease if infected with COVID-19 is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
49. Other individuals who may not be identified as high risk should also be considered for release. Reducing the overall number of individuals in detention facilities will facilitate social distancing for remaining detainees and lessen the burden of ensuring the safety
35 See: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html accessed March 23, 2020

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 13 of 33
of detainees and corrections officers. 50. To the extent that vulnerable detainees have had exposure to known cases with
laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released to home quarantine for 14 days. Where there is not a suitable location for home quarantine available, these individuals could be released to housing identified by the county or state Department of Health.

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 14 of 33 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and
correct. Executed this 24th day in March 2020 in Princeton, New Jersey.
Joseph J. Amon, PhD MSPH

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 15 of 33

EDUCATION
08/1998-10/2002
08/1991-12/1994 08/1987-05/1991

Joseph J. Amon, PhD, MSPH
ROOM 734, NESBITT HALL 3215 MARKET ST
PHILADELPHIA, PA 19104 jja88@drexel.edu
Dept. of Preventive Medicine/Biometrics, Uniformed Services University of the Health Sciences, F. Edward Hebert School of Medicine PhD, Dissertation: Molecular Epidemiology of Malaria in Kenya
Dept. of Parasitology and Tropical Medicine, Tulane University School of Public Health & Tropical Medicine MSPH, Tropical Medicine
Hampshire College BA, Interdisciplinary Studies

Bethesda, MD New Orleans, LA Amherst, MA

ACADEMIC APPOINTMENTS

9/2018 – Present 01/2010 – Present

Dornsife School of Public Health, Drexel University Director, Global Health Clinical Professor, Dept of Community Health and Prevention
Dept. of Epidemiology and Center for Public Health and Human Rights, Bloomberg School of Public Health, Johns Hopkins Associate

Philadelphia, PA Baltimore, MD

09/2010 – 06/2018

Woodrow Wilson School of Public and International Affairs, Princeton University Visiting Lecturer

Princeton, NJ

01/2015 – 05/2018

Dept. of Epidemiology, Mailman School of Public Health, Columbia University Adjunct Associate Professor

New York, NY

06/2014 – 07/2014

School of Social Science, Institute for Advanced Study Short-term Visitor

Princeton, NJ

09/2012 – 12/2012

Institut d'Études Politiques de Paris (SciencesPo) Distinguished Visiting Lecturer

Paris, France

01/2003–06/2007

Dept. of Preventive Medicine, Hebert School of Medicine, Uniformed Services University of the Health Sciences Adjunct Assistant Professor

Bethesda, MD

Joseph J. Amon Page 1 of 19

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 16 of 33

TEACHING EXPERIENCE

Professor 2019 - Present

Drexel University

2011 – 2018
09-12/2012 Co-Instructor 2012-2013

Princeton University
SciencesPo
Global School of Socioeconomic Rights, Harvard University

Theory and Practice of Community Health (graduate) Health and Human Rights (undergrad/graduate) Community Health: Cuba (graduate)
Health and Human Rights (undergraduate) Epidemiology (undergraduate)
Health and Human Rights (graduate)
Health Rights Litigation (graduate)

COMMITTEES AND ADVISORY BOARD MEMBERSHIP

Editorial

09/2019 – Present 01/2010 – Present 07/2012 – Present 01/2015 – 07/2016 09/2017 – 06/2018

Senior Editor, Health and Human Rights Journal Journal of the International AIDS Society, Editorial Board Journal of the International AIDS Society, Ethics Committee Co-Editor, The Lancet HIV Special Issue on HIV and Prisoners Co-Editor, Health and Human Rights Journal Special Issue on NTDs and Human Rights

Advisory
09/2016 – Present
12/2014 – Present 07/2008 – Present 06/2012 – 6/2018
02/2012 – 01/2016 01/2014 – 01/2016 07/2011 – 07/2012 11/2009 – 09/2012

The Global Fund, Working Group on Monitoring and Evaluating Programmes to Remove Human Rights Barriers to HIV, TB and Malaria Services UNAIDS, Strategic and Technical Advisory Group UNAIDS, HIV and Human Rights Reference Group (co-chair Aug 2014 – present) Global Institute for Health and Human Rights, University at Albany, International Advisory Board Founding member, Coalition for the Protection of Health Workers in Armed Conflict Founding member: Robert Carr Award for Research on HIV and Human Rights XIX International AIDS Conference, Scientific Programme Committee WHO/STOP TB Partnership, TB and Human Rights Task Force

Joseph J. Amon Page 2 of 19

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 17 of 33

FULL-TIME WORK EXPERIENCE

09/2018-Present

Drexel University, Dornsife School of Public Health, Philadelphia, PA. - Director, Global Health - Clinical Professor, Dept of Community Health and Prevention

02/2016–08/2018 08/2005–01/2016 07/2003–06/2005

Helen Keller International, New York, NY. - Vice President, Neglected Tropical Diseases
Provided strategic, technical and overall management for >$125m portfolio of work on NTDs. Led development of proposals resulting in >$80m in new projects.
Human Rights Watch, New York, NY. - Director, Health Division (Sept 2008 – Jan 2016) - Founded Disability Rights Division (2013); Environment Division (2015) - Director, HIV/AIDS Program (August 2005 – August 2008)
Led research and advocacy division focused on human rights and health. Founded programs on disability rights and environment. Responsible for financial and personnel management, fundraising and communications.
Centers for Disease Control and Prevention, Atlanta, GA. - Epidemiologist, EIS Officer
Led hepatitis outbreak investigations in US and overseas. Collaborated with U.S. and international academic and government researchers. Analyzed trends in hepatitis prevalence and vaccination rates in diverse populations.

07/2000–09/2002 07/1995–06/1998

Walter Reed Army Institute of Research, Silver Spring, MD. - Research Fellow
Conducted molecular epidemiologic and immunologic research on malaria, examining host-parasite interaction, vaccine efficacy, and correlates of disease severity.
Family Health International, Arlington, VA. - Technical Officer (Jan – June 1998) - Evaluation Officer (Aug 1996 – Dec 1997) - Associate Evaluation Officer (July 1995 – July 1996)
Designed and analyzed HIV behavioral research and program evaluation studies. Supervised field-based research and evaluation staff in U.S., Brazil, Jamaica, Dominican Republic, Kenya, Ghana, and Haiti.

09/1992–11/1994

U.S. Peace Corps, Lomé, Togo. - Volunteer
Designed and implemented process monitoring system for national Guinea Worm eradication program. Conducted health education training. Supervised village health workers.

Joseph J. Amon Page 3 of 19

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 18 of 33

SHORT-TERM AND CONSULTING EXPERIENCE

Human Rights Watch, New Provide technical review for research design,

York, NY.

analysis and documents related to health and

environment and human rights.

Sept 2018 – Present

The Futures Group International, REACH Project, Washington DC.
Walter Reed Army Institute of Research, Silver Spring, MD.

Co-investigator for HIV/AIDS operations research related to orphans and vulnerable children and adolescent-oriented HIV volunteer counseling and testing.
Developed database and provided statistical support to malaria vaccine clinical trial project.

John Snow, Inc., Arlington, VA.

Developed curriculum and provided training on HIV/AIDS monitoring and evaluation to Ministry of Health staff from 8 countries.

TvT Associates, SYNERGY Designed $20+ million comprehensive HIV/AIDS Project, Washington, DC. strategy for USAID Ukraine and USAID Russia.

Mar 2002 – June 2003 Apr 2002 – June 2003 Dec. 2002 – June 2003 Dec. 2001 – April 2003

PACT, Washington, DC.

Designed outcome and impact evaluation of HIV behavioral intervention project.

Encompass LLC, Bethesda, Designed evaluation of World Bank health sector

MD.

reform training.

June 2002 January – May 2002

U of Washington, Center for Health Education and Research.
Family Health International, Arlington, VA.

Developed guidelines and training materials for monitoring and evaluating HIV/AIDS programs.

April – May 2002

Analyzed HIV-related behavioral surveillance results Sept 1998 – Mar 2002 from studies in Honduras, Nigeria, Ghana, and Senegal.

Datex Inc., Falls Church, VA.

Provided expert review for USAID-funded HIV/AIDS behavioral intervention grants competition.

May– Jun 2001 Jan – Feb 2000

PLAN International

Designed and implemented quantitative and

Bamako, Mali and Arlington, qualitative evaluation of HIV/AIDS program and

VA.

developed $6 million follow-on program.

Ministry of Health, Kingston, Jamaica.

Analyzed behavioral surveillance results and facilitated workshop examining HIV trends.

May – Dec 2000 Oct 1998

Eli Lilly Foundation, Diabetes Control Program, Accra, Ghana.
Carter Center, Niger Guinea Worm Eradication Program, Zinder, Niger.

Designed and implemented outcome and impact evaluation of diabetes prevention and care program.
Designed and implemented outcome and impact evaluation of guinea worm eradication program.

Sept 1996
Mar – May 1995
Joseph J. Amon Page 4 of 19

Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 19 of 33

PEER REVIEW JOURNAL PUBLICATIONS

1

Kotellos KA, Amon JJ, Githens Benazerga W. Field Experiences: measuring capacity building

efforts in HIV/AIDS prevention programmes. AIDS 1998; 12 (supl 2):109-17.

2

Figueroa JP, Brathwaite AR, Wedderburn M, Ward E, Lewis-Bell K, Amon JJ, Williams Y,

Williams E. Is HIV/STD control in Jamaica making a difference? AIDS 1998; 12 (supl 2):S89-

S98.

3

Hayman JR, Hayes SF, Amon J, Nash TE. Developmental expression of two spore wall proteins

during maturation of the microsporidian Encephalitozoon intestinalis. Infect Immun 2001;

69(11):7057-66.

4

Amon JJ. Preventing HIV Infections in Children and Adolescents in Sub-Saharan Africa through

Integrated Care and Support Activities. African Journal on AIDS Research. 2002; 1(2):143-9.

5

Gourley IS, Kurtis JD, Kamoun M, Amon JJ, Duffy PE. Profound bias in interferon-gamma and

interleukin-6 allele frequencies in an area of western Kenya where severe malarial anemia is

common in children. Journal of Infectious Disease. 2002; 186(7):1007-12.

6

Wheeler C, Vogt T, Armstrong GL, Vaughan G, Weltman A, Nainan OV, Dato V, Xia G, Waller

K, Amon J, Lee TM, Highbaugh-Battle A, Hembree C, Evenson S, Ruta MA, Williams IT, Fiore

AE, Bell BP. A Foodborne Outbreak of Hepatitis A in Pennsylvania Associated with Green

Onions. New England Journal of Medicine 2005, 353(9):890-7.

7

Amon JJ, Nedsuwan S, Chantra S, Bell BP, Dowell SF, Olsen SJ, Wasley A. Trends in Liver

Cancer, Sa Kaeo Province, Thailand. Asian Pacific Journal of Cancer Prevention 2005, 6(3):382-

6.

8

Amon JJ, Devasia R, Xia G, Nainan OV, Hall S, Lawson B, Wolthuis JS, Macdonald PD,

Shepard CW, Williams IT, Armstrong GL, Gabel JA, Erwin P, Sheeler L, Kuhnert W, Patel P,

Vaughan G, Weltman A, Craig AS, Bell BP, Fiore A. Molecular Epidemiology of Foodborne

Hepatitis A Outbreaks in the United States, 2003. Journal of Infectious Disease. 2005 Oct

15;192(8):1323-30.

9

Amon JJ, Drobeniuc J, Bower W, Magaña JC, Escobedo MA, Williams IT, Bell BP, Armstrong

GL. Locally Acquired Hepatitis E Virus Infection, El Paso, TX. Journal of Medical Virology 2006,

78(6):741-6.

10 Amon JJ, Darling N, Fiore AE, Bell BP, Barker LE. Factors Associated with Hepatitis A Vaccination among Children 24-35 Months in the U.S., 2003. Pediatrics 2006, 117(1):30-3.

11 Ryan JR, Stoute JA, Amon J, Dunton RF, Mtalib R, Koros J, Owour B, Luckhart S, Wirtz RA, Barnwell JW, Rosenberg R. Evidence for Transmission of Plasmodium Vivax among a Duffy Antigen Negative Population in Western Kenya. American Journal of Tropical Medicine and Hygiene. 2006 75(4):575-81.

12 Kippenberg J, Baptiste J, Amon JJ. Detention of Insolvent Patients in Burundian Hospitals. Health Policy and Planning. 2008; Jan;23(1):14-23.

13 Amon JJ. Dangerous Medicines: Unproven AIDS Cures and Counterfeit Antiretroviral Drugs. Globalization and Health. 2008; Feb 27;4:5.

14 Amon JJ, Garfein R, Adieh-Grant L, Armstrong GL, Ouellet LJ, Latka MH, Vlahov D, Strathdee SA, Hudson SM, Kerndt P, Des Jarlais D, Williams IT. Prevalence of HCV infection among injecting drug users in 4 U.S. cities at 3 time periods, 1994 – 2004. Clinical Infectious Diseases. 2008, Jun 15;46(12):1852-8.

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15 Cohen JE and Amon JJ. Health and human rights concerns of drug user in detention in Guangxi, China. PLoS Medicine. 2008, Dec 9;5(12):e234.
16 Amon JJ and Todrys K. Fear of Foreigners: HIV-related restrictions on entry, stay, and residence. Journal of the International AIDS Society. 2008, Dec 16;11:8..
17 Amon JJ and Kasambala T. Structural Barriers and Human Rights Related to HIV Prevention and Treatment in Zimbabwe. Global Public Health. 2009, Mar 26:1-17.
18 Amon JJ and Todrys K. Access to Antiretroviral Treatment for Migrant Populations in the Global South. SUR: International Journal on Human Rights. 2009, 6 (10), 162-187.
19 Todrys K. and Amon JJ. Within but Without: Human Rights and Access to HIV Prevention and Treatment for Internal Migrants. Globalization and Health. 2009, 5, 17.
20 Hafkin J, Gammino VM, Amon JJ. Drug Resistant Tuberculosis in Sub-Saharan Africa. Current Infectious Disease Reports 2010, 12(1), 36-45.
21 Lohman D, Schleifer R, Amon JJ. Access to Pain Treatment as a Human Right. BMC Medicine. 2010 Jan 20;8(1):8.
22 Jurgens R, Csete J, Amon JJ, Baral S, Beyrer C. People who use drugs, HIV, and human rights. Lancet 2010 Aug 7;376(9739):475-85.
23 Thomas L, Lohman D, Amon J. Access to pain treatment and palliative care: A human rights analysis. Temple International and Comparative Law Journal. Spring 2010. 24, 365
24 Todrys K*, Amon JJ*, Malembeka G, Clayton M. Imprisoned and imperiled: access to HIV and TB prevention and treatment, and denial of human rights, in Zambian prisons. Journal of the International AIDS Society 2011, 14:8. (*co-first authors)
25 Todrys K, Amon JJ. Health and human rights of women imprisoned in Zambia. BMC International Health and Human Rights 2011, 11:8.
26 Todrys K, Amon JJ. Human rights and health among juvenile prisoners in Zambia. International Journal of Prisoner Health, 2011, 7(1):10-17.
27 Barr D, Amon JJ, Clayton M. Articulating a rights-based approach to HIV treatment and prevention interventions. Current HIV Research, 2011, 9, 396-404.
28 Granich R, Gupta S, Suthar AB, et al. (Amon J, as member of the ART in Prevention of HIV and TB Research Writing Group) Antiretroviral therapy in prevention of HIV and TB: update on current research efforts. Current HIV Research, 2011 9, 446-69.
29 Jones L, Akugizibwe P, Clayton M, Amon JJ, Sabin ML, Bennett R, Stegling C, Baggaley R, Kahn JG, Holmes CB, Garg N, Obermeyer CM, Mack CD, Williams P, Smyth C, Vitoria M, Crowley S, Williams B, McClure C, Granich R, Hirnschall G. Costing human rights interventions as a part of universal access to HIV treatment and care in a Southern African setting. Current HIV Research, 2011, 9, 416-428.
30 Todrys KW, Amon JJ. Criminal Justice Reform as HIV and TB Prevention in African Prisons. PLoS Medicine, 2012, 9(5): e1001215.
31 Biehl J, Amon JJ, Socal MP, Petryna A. Between the court and the clinic: Lawsuits for medicines and the right to health in Brazil. Health and Human Rights Journal. June 2012, 12(6).
32 Amon JJ, Beyrer C, Baral S., Kass N. Human Rights Research and Ethics Review: Protecting Individuals or Protecting the State? PLoS Med 9(10): e1001325. Oct 2012
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33 Dekker AM, Amon JJ, le Roux KW, Gaunt CB. What is Killing Me Most: Chronic Pain and the Need for Palliative Care in Eastern Cape, South Africa. Journal of Pain and Palliative Care Pharmacotherapy. 2012;26:1–7.
34 Amon JJ, Buchanan J, Cohen J, Kippenberg J. Child Labor and Environmental Health: Government Obligations and Human Rights. International Journal Pediatrics. 2012, #938306
35 Cohen JE, Amon JJ. China’s Lead Poisoning Crisis. Health and Human Rights Journal. 2012: Dec 15;14(2):74-86
36 Todrys KW, Howe E, Amon JJ. Failing Siracusa: Governments’ Obligations to Find the Least Restrictive Options for Tuberculosis Control. Public Health Action. 2013: 3(1):7-10.
37 Amon JJ, Schleifer R, Pearshouse R, Cohen JE. Compulsory Drug Detention Centers in China, Cambodia, Vietnam and Lao PDR: Health and Human Rights Abuses. Health and Human Rights Journal. December 2013.
38 Amon JJ, Schleifer R, Pearshouse R, Cohen JE. Compulsory Drug Detention in East and Southeast Asia: Evolving Government, UN and Donor Responses. International Journal of Drug Policy 2014: 25(1):13-20.
39 Denholm JT, Amon JJ, O’Brien R et al. Attitudes towards involuntary incarceration for tuberculosis: a survey of Union members. International Journal of Tuberculosis and Lung Disease 2014: 18(2):155-9.
40 Amon JJ, Wurth M, McLemore M. Evaluating Human Rights Advocacy: A Case Study on Criminal Justice, HIV and Sex Work. Health and Human Rights Journal 17/1. March 2015.
41 Lohman D, Amon JJ. Evaluating a Human Rights-Based Advocacy Approach to Expanding Access to Pain Medicines and Palliative Care: Global Advocacy and Case Studies from India, Kenya, and Ukraine. Health and Human Rights Journal 17/2. Dec 2015.
42 Meier BM, Gelpi A, Kavanagh MM, Forman L, Amon JJ. Employing Human Rights Frameworks to Realize Access to an HIV Cure. J Int AIDS Soc. 18(1):20305.
43 Biehl J, Socal M, Amon JJ. The Judicialization of Health and the Quest for State Accountability: Evidence from 1,262 Lawsuits for Access to Medicines in Southern Brazil. Health and Human Rights Journal 18/1. June 2016.
44 Rich JD, Beckwith CG, Macmadu A, Marshall BD, Brinkley-Rubinstein L, Amon JJ, Milloy MJ, King MR, Sanchez J, Atwoli L, Altice FL. Clinical care of incarcerated people with HIV, viral hepatitis, or tuberculosis. The Lancet. 2016 Jul 14.
45 Dolan K, Wirtz AL, Moazen B, Ndeffombah M, Galvani A, Kinner SA, Courtney R, McKee M, Amon JJ, Maher L, Hellard M. Global burden of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet. 2016 Jul 14.
46 Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14.
47 Telisinghe L, Charalambous S, Topp SM, Herce ME, Hoffmann CJ, Barron P, Schouten EJ, Jahn A, Zachariah R, Harries AD, Beyrer C, Amon JJ. HIV and tuberculosis in prisons in sub-Saharan Africa. The Lancet. 2016 Jul 14.
48 Beletsky L, Arredondo J, Werb D, Vera A, Abramovitz D, Amon JJ, Brouwer KC, Strathdee SA, Gaines TL. Utilization of Google enterprise tools to georeference survey data among hard-toreach groups: strategic application in international settings. International Journal of Health Geographics. 2016 Jul 28;15(1):24.
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49 Doyle KE, El Nakib SK, Rajagopal MR, S Babu, G Joshi, V Kumarasamy, P Kumari, P Chaudhri, S Mohanthy, D Jatua, D Lohman, Amon JJ, G Palat. Predictors and prevalence of pain and its management in four regional cancer hospitals in India. Journal of Global Oncology. (2017): JGO2016.
50 Hamdi H, Ba O, Niang S, Ntizimira C, Mbengue M, Coulbary AS, Niang R, Parsons M, Amon JJ, Lohman D. Palliative Care Need and Availability in Four Referral Hospitals in Senegal: Results from a Multi-Component Assessment. Journal of Pain and Symptom Management. 2017 Dec 7.
51 Traoré L, Dembele B, Keita M, Reid S, Dembéle M, Mariko B, Coulibaly F, Goldman W, Traoré D, Coulibaly D, Guindo B, Amon JJ, Knieriemen M, Zhang Y. Prevalence of trachoma in the Kayes region of Mali eight years after stopping mass drug administration. PLoS neglected tropical diseases. Feb 2018;12(2):e0006289.
52 Biehl J, Socal MP, Gauri V, Diniz D, Medeiros M, Rondon G, Amon JJ. Judicialization 2.0: Understanding right-to-health litigation in real time. Global Public Health. May 2018 22:1-0.
53 Sun N and Amon JJ. Addressing Inequity: Neglected Tropical Diseases and Human Rights. Health and Human Rights Journal. June 2018.
54 Amon JJ, Addiss D. “Equipping Practitioners”: Linking Neglected Tropical Diseases and Human Rights. Health and Human Rights Journal. June 2018.
55 Géopogui A, Badila CF, Baldé MS, Nieba C, Lamah L, Reid SD, Yattara ML, Tougoue JJ, Ngondi J, Bamba IF, Amon JJ. Baseline trachoma prevalence in Guinea: Results of national trachoma mapping in 31 health districts. PLoS neglected tropical diseases. June 2018; 12(6):e0006585.
56 Coltart CE, Hoppe A, Parker M, Dawson L, Amon JJ, Simwinga M, Geller G, Henderson G, Laeyendecker O, Tucker JD, Eba P. Ethical considerations in global HIV phylogenetic research. The Lancet HIV. Aug 2018
57 Amon JJ, Eba P, Sprague L, Edwards O, Beyrer C. Defining rights-based indicators for HIV epidemic transition. PLoS medicine. Dec 2018; 15(12):e1002720.
58 Bah YM, Bah MS, Paye J, Conteh A, Saffa S, Tia A, Sonnie M, Veinoglou A, Amon JJ, Hodges MH, Zhang Y. Soil-transmitted helminth infection in school age children in Sierra Leone after a decade of preventive chemotherapy interventions. Infectious diseases of poverty. 2019 Dec;8(1):41.
59 Addiss DG, Amon JJ. Apology and Unintended Harm in Global Health. Health and Human Rights. 2019 Jun;21(1):19.
60 Socal MP, Amon JJ, Biehl J. Institutional Determinants of Right-to-Health Litigation: The Role of Public Legal Services on Access to Medicines in Brazil. Global Public Health. (in press)
61 Ward E, Hannass-Hancock J, Amon JJ. Invisible: The Exclusion of Persons with Disabilities from HIV Research and National Strategic Plans in East and Southern Africa. (Article: submitted)
BOOK CHAPTERS
1 Amon J. Africa, Southern in: Encyclopedia of AIDS, Ray Smith, ed. Chicago: Fitzroy Dearborn Publishers, 1998.
2 Amon JJ, Kotellos KA, Githens Benazerga W. Evaluating Capacity Building. HIV/AIDS Prevention and Control Synopsis Series. Family Health International, Arlington, VA: 1997.
3 Amon JJ, Saidel TJ, Mills S. Behavioral Surveillance Survey Methodology: Experiences from Senegal and India. WHO/UNAIDS Best Practices Series. WHO/UNAIDS. Geneva, June 2000.
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4 Amon J, Brown T, Hogle J, MacNeil J, et al. Behavioral Surveillance Surveys: Guidelines for repeated behavioral surveys in populations at risk of HIV. FHI/IMPACT, USAID, DFID Publication. August 2000.
5 Kolars-Sow C, Saidel T, Hogle J, Amon J, Mills S. Indicators and questionnaires for behavioral surveys. In: Rehle T, Saidel T, Mills S, and Magnani R., (eds.) Evaluating Programs for HIV/AIDS Prevention and Care in Developing Countries: A Handbook for Program Managers and Decision Makers. Family Health International, Arlington, VA. August 2001.
6 Amon JJ, Bond KC, Brahmbhatt MN, et al. Bellagio Principles on Social Justice and Influenza. Johns Hopkins. Berman Institute of Bioethics. July 2006.
7 Cohen J. and Amon J. Governance, Human Rights and Infectious Disease: Theoretical, Empirical and Practical Perspectives. in: K.H. Mayer and H. F. Pizer, (eds.) Social Ecology of Infectious Diseases. New York: Academic Press. December 2007.
8 Amon J. High Hurdles for Health. In: M. Worden (ed.) China’s Great Leap: The Beijing Games and Olympian Human Rights Challenges. Seven Stories Press. May 2008.
9 Amon J. Preventing the Further Spread of HIV/AIDS: The Essential Role of Human Rights. In: N. Sudarshan (ed.) HIV/AIDS, Health Care and Human Rights Approaches. Amicus Books. Jan 2009.
10 Amon J. Abusing Patients. In: Human Rights Watch, 2010 World Report. New York: Seven Stories Press. Jan 2010.
11 Amon JJ and Kasambala T. Structural barriers and human rights related to HIV prevention and treatment in Zimbabwe. In: M. Seglid and T. Pogge (eds) Health Rights. London: Ashgate. Oct 2010.
12 Amon JJ. HIV and the Right to Know: Whose right to know what? The discourse of human rights in the global HIV response. In: J. Biehl and A. Petryna (eds.) "When people come first: Anthropology and social innovation in global health". Princeton: Princeton University Press. July 2013.
13 Amon JJ. Health Security and/or Human Rights? In: S Rushton and J Youde (eds) “Routledge Handbook of Health Security”. New York: Routeledge. August 2014.
14 Amon JJ and Friedman E. Human Rights Advocacy for Global Health. In: LO Gostin and BM Meier (eds) “Foundations of Global Health & Human Rights”. New York: Oxford University Press. 2020
EDITORIAL/COMMENT
1 Amon J. The Continued Challenge Posed by HIV-Related Restrictions on Entry, Stay, and Residence. HIV/AIDS Policy and Law Review. 2008, 13(2/3).
2 Biehl J, Petryna A, Gertner A, Amon JJ, Picon PD. Judicialization of the Right to Health in Brazil. Lancet. 2009, 373(9682):2182-4.
3 Amon JJ, Girard F, Keshavjee S. Limitations on human rights in the context of drug-resistant tuberculosis: A reply to Boggio et al. Health and Human Rights. 2009, 11(1).
4 Thomas L, Lohman D, Amon J. Doctors take on the state: championing patients' right to pain treatment. Int J Clin Pract. 2010, 64(12):1599-600.
5 Amon J. HIV Treatment as Prevention – Human Rights Issues. Journal of the International AIDS Society. 2010, 13(Suppl 4):O15
6 Amon JJ. Hepatitis in Drug Users: Time for Attention, Time for Action. Lancet, 2011, 378(9791):543-4
7 Amon J, Lohman D. Denial of Pain Treatment and the Prohibition of Torture, Cruel, Inhuman or Degrading Treatment or Punishment. Interrights Bulletin, 2011, Vol 16: 4.
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8 Amon J. Justice Delayed, Health Denied. The Scientist. June, 2012.
9 Kyoma M, Todrys KW, Amon JJ. Laws against sodomy and the HIV epidemic in African prisons. Lancet, 2012, 380 (9839): 310 - 312
10 Pearshouse R, Amon JJ. The Ethics of Research in Compulsory Drug Detention Centers in Asia. Journal of the International AIDS Society. 2012, 15:18491
11 Wurth MH, Schleifer R, McLemore M, Todrys KW, Amon JJ. Condoms as Evidence of Prostitution in the US and the Criminalization of Sex Work. Journal of the International AIDS Society. 16(1): 10.7448/IAS.16.1.18626.
12 Amon JJ. Political Epidemiology of HIV. Journal of the International AIDS Society. 2014, 17:19327
13 Amon JJ. Law, Human Rights and Health Databases: A roundtable discussion. Health and Human Rights Journal. September 2014.
14 Otremba M, Berland G, Amon JJ. Hospitals as Debtor Prisons. The Lancet Global Health. 3, 5: e253–e254, May 2015.
15 Beyrer C, Kamarulzaman A, McKee M, for the Lancet HIV in Prisoners Group (incl. Amon JJ). Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14.
16 Amon JJ. The impact of climate change and population mobility on neglected tropical disease elimination. International Journal of Infectious Diseases 53 (2016): 12.
17 Amon JJ. WHO Focus on Human Rights: Will it Extend to Neglected Tropical Diseases? Health and Human Rights Journal. Nov 2017.
18 Groves, A, Maman S, Stankard PH, Gebrekristos LT, Amon JJ, Moodley D. Addressing the unique needs of adolescent mothers in the fight against HIV. Journal of the International AIDS Society.
19 Amon JJ, Sun N. Subverting Rights: Addressing the Increasing Barriers to Reproductive Rights. Health and Human Rights Journal. May 2018.
20 Biehl J, Amon JJ. The Right to Remedies: On Human Rights Critiques and Peoples’ Recourses. Humanity Journal. Oct 2019
21 Williams C, Amon JJ, Bassett MT, Roux AV, Farmer PE. 25 Years: Exploring the Health and Human Rights Journey. Health and Human Rights. 2019 Dec;21(2):279.
22 Amon JJ, Sun N. HIV, human rights and the last mile. Journal of the International AIDS Society. 2019 Dec 1;22(12).
23 Amon JJ. Ending discrimination in healthcare. Journal of the International AIDS Society. 2020 Feb;23(2).
LETTERS
1 Amon JJ. The HIV/AIDS Epidemic in Ukraine: stable or still exploding? Sexually Transmitted Infections. 2003 79(3):263-4.
2 Lohman D, Amon JJ. HIV Testing. Lancet. 2008 Feb 16;371(9612):557-8.
3 Root B, Levine I, Amon JJ. Counting and Accountability. Lancet. 2008 Jan 12;371(9607):113.
4 Tarantola D, Amon J, Zwi A, Gruskin S, Gostin L. H1N1, public health security, bioethics, and human rights. Lancet. 2009 Jun 20;373(9681):2107-8
5 Hsieh A, Amon JJ. Ratification of human rights treaties: the beginning not the end. Lancet. 2009 Aug 8;374(9688):447
6 Amon J, Lohman D, Thomas L. Access to pain treatment a luxury for most. Lancet 2009 Nov 14; 374:1676
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7 Amon J. Harm reduction and the Catholic Church. Conscience. Winter 2010.
8 Amon J. Human Rights Abuses, Ethics, and the Protection of Subjects When Conducting Research on Intravenous Drug Users in China. JAIDS: Journal of Acquired Immune Deficiency Syndromes. June 2011.
9 Cohen EJ, Amon JJ. Lead Poisoning in China. Lancet, 2011, 378(9803):e3.
10 Amon JJ. Chinese Addiction Study and Human Rights. Science, 2012, 337:522-523.
11 Pearshouse R and Amon JJ. Human Rights and HIV Interventions in Chinese Labour Camps. Sex Transm Infect. doi:10.1136/sextrans-2015-052193
12 Biehl J, Amon JJ, Socal M, Petryna A. The Challenging Nature of Gathering Evidence and Analyzing the Judicialization of Health in Brazil. Cadernos de Saúde Pública. July 2016.
13 Biehl J, Socal M, Amon JJ. On the Heterogeneity and Politics of the Judicialization of Health in Brazil. Health and Human Rights Journal. Dec 2016.
14 Amon J. Re: Attacks on Ebola Health Workers in the Democratic Republic of Congo. New York Times. May 23, 2019.
15 Rubenstein L, Amon JJ. Global health, human rights, and the law. The Lancet. 2019 Nov 30;394(10213):1987-8.

OPINION

1

Empowering Women and Realizing Rights. Toronto Star. August 11, 2006

2

Why We Need an International AIDS Conference. Toronto Globe and Mail. August 15, 2006

3

Curb HIV infection rates in Texas prisons. Austin American Statesman. May 10, 2007

4

Diagnosis and Prescriptions. Foreign Affairs. May/June 2007

5

The Bush Policy On AIDS. Huffington Post. July 26, 2007

6

Saudi Move on HIV/AIDS will make the epidemic worse. Saudi Debate. Oct 24, 2007

7

How not to fight HIV/Aids. The Guardian. Jan 28, 2008

8

Blaming Foreigners. The Korea Times. March 12, 2009

9

Progress against HIV at risk. Phnom Penh Post. November 16, 2009

10 HIV Travel Bans: Small Steps, Big Gaps. Huffington Post. January 11, 2010

11 Don't Improve Drug Detention: End It. Huffington Post. January 15, 2010

12 Torture in health care. Huffington Post. January 22, 2010

13 Treatment or punishment? Bangkok Post. January 24, 2010

14 Rights abuses threaten HIV risk. Phnom Penh Post. January 27, 2010

15 Cambodian drug rehab centers: Abusive, illegal, ineffective. The Nation (Bangkok). Jan 27 2010

16 Drug dependence is not a moral issue. Phnom Penh Post. January 29, 2010

17 Condoms and Bibles. The National (PNG). February 8, 2010

18 Chronic Pain and Torture. Huffington Post. February 23, 2010

19 Invisible Women. Huffington Post. March 8, 2010

20 How Not to Protect Children. Phnom Penh Post. March 8, 2010 21 Choam Chao needs independent investigation. Phnom Penh Post. March 24, 2010

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22 March 24 Is World Tuberculosis Day. Huffington Post. March 24, 2010 23 Who Will Defend Children in Cambodian Drug Rehab Centres? The Nation. March 31, 2010 24 Holiday in Cambodia? Huffington Post. April 6, 2010 25 When the Government Sponsors Stigma. Huffington Post. April 27, 2010 (with M. McLemore) 26 Zambia’s TB-ridden prisons. The Guardian. April 27, 2010 27 Chinese Corruption Is Hazardous to Your Health. Asia Wall Street Journal. May 13, 2010 28 Why the Vietnamese Don’t Want to Go to Rehab. Foreign Policy. May 28, 2010 29 Aids and TB are breaking out of prisons. East African. June 7, 2010 30 Uganda AIDS Policy: from Exemplary to Ineffective. The Observer (Kampala) June 24, 2010 31 When a Problem Comes Along, You Must Whip It. Huffington Post. June 26, 2010 32 Action not Rhetoric on HIV and Human Rights. Huffington Post. July 2, 2010 33 The Truth About China's Response to HIV/AIDS. Los Angeles Times. July 11, 2010 34 HIV Behind Bars. The Post (Lusaka). July 11, 2010 35 HIV and Human Rights: Here and Now? Huffington Post. July 19, 2010 36 The HIV and TB Prison Crisis in Southern Africa. Huffington Post. July 23, 2010 37 Jailing TB patients not remedy for the disease. The Star (Nairobi). Sept 17, 2010 38 Rights and Health, Right Now, for Migrants. Africa Now (Tokyo). October 2010 (with Kanae Doi) 39 Why Democracies Don't Get Cholera. Foreign Policy. October 25, 2010. 40 The Beginning of the End for the War on Drugs? San Francisco Chronicle. November 21, 2010 41 Rights Abuses Belie Success in AIDS Fight. South China Morning Post. December 1, 2010 42 World AIDS Day: Prevention, Treatment for Prisoners. Zambia Post. December 1, 2010 43 Lead poisoning in Nigeria: unprecedented. Global Post. December 2, 2010 44 China is hurting its future by not acting on lead. South China Morning Post. June 20, 2011 45 Hard life in Ugandan prisons. The Independent (Uganda). July 8. 2011 46 'Utterly Irresponsible': Donor Funding in Drug 'Treatment' Centers. Huff. Post. Sept 14, 2011 47 National Cashew Day: More Than Nuts. Global Post. October 3, 2011 48 A centre for abuse and beating. The Nation (Bangkok). October 11, 2011 49 Laos’ Murky War on Drugs. The Diplomat. October 12, 2011 50 One AIDS march that should end. Washington Blade. October 28, 2011 51 Seoul’s Broken Promises on HIV Testing. The Diplomat. June 29, 2013 52 Drug treatment centres give more abuse than therapy. Bangkok Post. December 18, 2013 53 Enlightened drug policies emerge globally, Cambodia remains rigid. Global Post. Jan 9, 2014 54 Health Under Attack. HRW Dispatch. May 19, 2014 (with Jennifer Pierre) 55 Canada's prostitution bill a step in the wrong direction. Ottawa Citizen. June 18, 2014 55 In The HIV Response, Who is ‘Hard to Reach’? HRW Dispatch. July 23, 2014 56 Defeating AIDS. HRW Dispatch. June 30, 2015 57 How not to handle Ebola. CNN. September 12, 2014
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58 Taking Care of the Caregivers. HRW Dispatch. December 17, 2014
59 Alert in a Time of Cholera. HRW Dispatch. March 26, 2015
60 Stop Using Hospitals as Debtor Prisons. HRW Dispatch. April 14, 2015
61 COP21: The Impact of Climate Change on the World’s Marginalized Populations: Turkana County, Kenya. Health and Human Rights Journal Blog. October 27, 2015. (with Katharina Rall)
62 An Important, but Imperfect, Agreement by an Unprecedented Coalition. US News and World Report. December 18, 2015
63 Health workers are under attack around the world. Here’s how bad it’s getting. Philadelphia Inquirer. May 28, 2019. (with Jennifer Taylor)
INVITED PRESENTATIONS (SELECT)
1 Surveillance design and evaluation approach of the Togo Guinea Worm Eradication Program. III West African Guinea Worm Eradication Conference, Abidjan, Cote d’Ivoire, November 1993.
2 Knowledge, attitudes and behaviors related to Guinea Worm Eradication, Togo. IV West African Guinea Worm Eradication Conference, Ouagadougou, Burkina Faso, October 1994.
3 Synthesis of evaluation results from the AIDSCAP project: 1992-1996. HIV/STD/AIDS National Forum, Port-au-Prince, Haiti, June 3-5, 1996. Research and Evaluation Panel Chair.
4 International Trends in HIV-Risk Related Behavior Change. National Conference on HIV/AIDS, Kingston, Jamaica, November 25-26, 1996.
5 HIV/AIDS and Adolescents in Ukraine. Ukrainian-American Medical Society Annual Meeting. Philadelphia, PA, May 2003.
6 Expanding HIV testing and respecting rights. International conference on HIV/AIDS and Human Rights. Smolny College. St Petersburg, Russia. October 2005.
7 HIV in Conflict Settings. Joint Congressional Human Rights Caucus meeting. Washington DC. March 2006.
8 Reflections and recollections. Masters Internationalist - US Peace Corps Symposium. Washington DC. April 2006. (Keynote)
9 Civil Society Participation in the Response to HIV/AIDS and Accountability. Presented in panel 1: Breaking the cycle of infection for sustainable AIDS responses. United Nations General Assembly Special Session on HIV/AIDS. New York. June 2006.
10 HIV testing and human rights. Public Health Agency of Canada Meeting on HIV Testing. Toronto. August 2006.
11 Hot Topics in Human Rights. XVI International AIDS Conference. Toronto. August 2006.
12 Burma, HIV and Human Rights. Asia Society. New York. September 2007.
13 HIV and Youth. 12th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium. New York University. New York. October 2007.
14 HIV testing: human rights considerations. Funders Network on Population, Reproductive Health and Rights. Annual Meeting, San Antonio, TX. October 2007.
15 Human Rights and Epidemic Disease: TB control and constraints on rights. Human Rights Funders Group. Annual Meeting. New York, NY. July 2008.
16 Promoting Public Health and Human Rights in MDR-TB Care. International Union against Lung and Tuberculosis Disease. Paris, France. October 2008.
17 Public Health and Human Rights: Challenges around the World. New York Academy of Sciences and Johns Hopkins School of Public Health Conference on Public Health and Human Rights. New York, NY. Dec 2008.
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18 Human Rights and Anti-Narcotics Policy. UN General Assembly, Special Session on Drugs. Vienna, Austria. March 2009.
19 Rights-based approaches to health. Interaction Annual Meeting. Arlington, VA. July 2009. (panel moderator)
20 Health and Human Rights: New orthodoxies and on-going conflicts in repressive states. Stanford University, Palo Alto, CA. October 2010.
21 HIV in Asia. Asia Society. December 1, 2010. 22 HIV Rights and Wrongs. GlobeMed National Conference. Northwestern University, Chicago, IL.
April 2011. (Keynote) 23 Human Rights Perspective. International Workshop on Treatment as Prevention. Vancouver,
Canada. May 2011. 24 Sustaining Environmental, Occupational and Public Health and Community Security: Lead
Poisoning in China and Nigeria. 12th National Conference on Science, Policy and the Environment. Washington, DC. January 2012. 25 Health and Human Rights in Prisons. European Infectious Disease meeting. Italy. September 2012. (Keynote) 26 Measuring Violence against Children and the Effectiveness of Violence Prevention and Reduction Initiatives. Columbia University. October 2013. (Panel Discussion Moderator) 27 Political Epidemiology of HIV. HIV 2014: Science, Community and Policy for Key Vulnerable Populations. New York Academy of Sciences. May 2014. 28 On the Radar: Police Brutality, Politics & Public Health. Princeton University. March 2015. 29 Global Inequalities of Wealth and Health. Bernstein Institute for Human Rights Annual Conference. New York University School of Law. April 2015. 30 Environmental and occupational health and human rights. Health and Human Rights Principles and Pedagogy. Florence, Italy. June 2015. 31 Interviewing Victims of Human Rights Abuses. Buzzfeed. New York. June 2015. 32 Global Health and Governance. Brookings Institution. May 2016. 33 Access to pain medicine and human rights. O'Neill Institute Health Rights Litigation. June 2016 33 The Morbidity Management and Disability Prevention Project. Global Alliance for Elimination of Trachoma 2020. Geneva, Switzerland. April 2017. 34 Human Rights and Phylogenetic Analysis. Ethics of Phylogenetics. Gates Foundation, UNAIDS, National Institutes for Health. London, UK. May 2017. 35 Judicialization and access to medicines in Brazil. O'Neill Institute Health Rights Litigation. Washington DC. June 2016. 36 Implementing health related SDGs through a human rights perspective. United Nations Social Forum. Geneva. October 2017. 37 Indicators, Equity, Rights. Making the end of AIDS real: Consensus building around what we mean by “epidemic control”. Glion, Switzerland. October 2017.
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CONFERENCE PRESENTATIONS
1 Wedderburn M, Amon J, Samiel S, Brathwaite A, Figueroa P. Knowledge, attitudes, beliefs and practices (KABP) about HIV/AIDS among male STD clinic attendees in Jamaica. XI Latin American Congress on STIs/V Panamerican Conference on AIDS, Lima, Peru, December 3-7, 1997.
2 Amon J, Bolanos L, Gonzales MT, Zelaya A, Lopez C, Rodriguez J. Knowledge of, availability, and use of condoms among commercial sex workers in four cities in Honduras. XI Latin American Congress on STIs/V Panamerican Conference on AIDS, Lima, Peru, December 3-7, 1997.
3 Wedderburn M, Amon J, Samiel S, Brathwaite A, Figueroa P. Knowledge, attitudes, beliefs and practices (KABP) about HIV/AIDS among youth aged 12-14 in Jamaica. XII Int Conf AIDS. 1998; 12:191 (abstract no. 13527).
4 Wedderburn M, Amon J, Samiel S, Brathwaite A, Figueroa P. Behavioral explanations for elevated prevalence of HIV in St. James Parish, Jamaica. XII Int Conf AIDS. 1998; 12:216-7 (abstract no. 14171).
5 D’Angelo LA, Amon J, Lemos ME, Rebeiro MA, Gitchens W, Kotellos K. Evaluating capacity building of implementing agencies in the AIDSCAP Brazil project. XII Int Conf AIDS. 1998;12:945 (abstract no. 43503).
6 Saidel T, Mills S, Amon J, Rehle T. Behavioral Surveillance Surveys (BSS) on specific target groups: a valuable complement to standardized general population surveys. XII Int Conf AIDS. 1998;12:233 (abstract no.14256).
7 Essah KAS, Jackson D, Attafuah JD, Amon J, Yeboah KG. Findings from the 2000 behavioral surveillance survey in Ghana. XIV International AIDS Conference: Abstract no. C11062
8 Chatterji M, Murray N, Dougherty L, Alkenbrack S, Winfrey B, Amon J, Ventimiglia T, Mukaneza A. Examining the impact of orphanhood on schoolleaving among children aged 619 in Rwanda, Zambia, and Cambodia. XV Int Conf on AIDS, 2004 (Abstract WePeD6602).
9 Murray NJ, Chatterji M, Dougherty L, Winfrey B, Buek K, Amon J, Mulenga Y, Jones A. Examining the impact of orphanhood and duration of orphanhood on sexual initiation among adolescents ages 10-19 in Rwanda and Zambia. XV Int Conf on AIDS, 2004 (Abstract TuOrD1218).
10 Amon J, Devasia R, Xia G, et al. Molecular Epidemiologic Investigation of Hepatitis A Outbreaks, 2003. 4th International Conference on Emerging Infectious Disease, Atlanta, GA, March 2004.
11 Amon J, Devasia R, Xia G, et al. Multiple Hepatitis A Outbreaks Associated with Green Onions among Restaurant Patrons – Tennessee, Georgia, and North Carolina, 2003. 53rd EIS Conference, Atlanta, GA, April 2004. (Winner, Mackel Award)
12 Chatterji M, Murray N, Dougherty L, Ventimiglia T, Mukaneza A, Buek K, Winfrey B, Amon J. Examining the impact of orphanhood on schoolleaving among children aged 6-19 in Rwanda, Zambia, and Cambodia. International Union for the Scientific Study of Population XXV International Population Conference Tours, France, July, 2005.
13 Murray NJ, Chatterji M, Dougherty L, Mulenga Y, Jones A, Buek K, Winfrey B, Amon J.. Examining the impact of orphanhood and duration of orphanhood on sexual initiation among adolescents ages 10-19 in Rwanda and Zambia. International Union for the Scientific Study of Population. International Population Conference France, July, 2005.
14 Cohen J, Schleifer R, Richardson J, Kaplan K, Suwannawong P, Nagle J, Amon J. Documenting Human Rights Violations Against Injection Drug Users: Advocacy for Health. 17th International Conference on the Reduction of Drug Related Harm. May 2006. Vancouver.
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15 Schleifer R, Cohen J, Nagle J, Amon J. Injection Drug Users, Harm Reduction, and Human Rights in Ukraine. 17th International Conference on the Reduction of Drug Related Harm. May 2006. Vancouver, Canada.
16 Bencomo C, Amon J, Iordache R, Schleifer R, Asandi S, Bohiltea A, Bucata C, Terragni C, Velica L. How gaps in Romania’s social support undermine HIV/AIDS prevention and treatment for children and youth. XVI International AIDS Conference: Abstract no. MOPE0922. August 2006.
17 Tate T, Bencomo C, Lisumbu J, Mafu Sasa R, Schleifer R, Amon J. Local and cultural beliefs about HIV transmission fuel childrenīs rights abuses in the Democratic Republic of Congo (DRC). XVI International AIDS Conference: Abstract no. CDE0086. August 2006.
18 Cohen J, Epstein H, Amon J. Human rights implications of AIDS-affected children’s unequal access to education. XVI International AIDS Conference: Abstract no. TUAE0202. August 2006.
19 Schleifer R, Skala P, Lezhentsev K, Amon J. Rhetoric and risk: human rights abuses impeding Ukraine’s fight against HIV/AIDS. XVI International AIDS Conference: Abstract no. THAE0302. August 2006.
20 Amon, J. Using a Human Rights Framework to Examine HIV/AIDS Programs and Policies. Abstract #139834. American Public Health Association Annual Meeting. November 2006. Boston, MA.
21 Ngonyama L, Lohman D, Clayton M, Amon J. The Role of Lay Counselors in Expanding HIV Testing: Lesotho’s Know Your Status Campaign. Abstract 1631. 2008 HIV/AIDS Implementers Meeting. Kampala, Uganda. June 2008.
22 Lohman D, Ovchinnikova M, Amon J. The role of Russia’s drug dependence treatment system in fighting HIV. XVII International AIDS Conference: Abstract no. TUAX0102. August 2008.
23 Amon J. HIV-specific travel restrictions: human rights, legal and ethical considerations. XVII International AIDS Conference: Abstract no. TUSS0406. August 2008.
24 Lohman D, Ngonyama L, Clayton M, Amon J. Expanding HIV testing and human rights: Lesotho’s Know Your Status Campaign. XVII International AIDS Conference: Abstract no. TUPE0469. August 2008.
25 Cohen JE, Amon J. Human Rights abuses and threats to health: recent experiences of Chinese drug users in detoxification and re-education through labor centers in Guangxi Province. XVII International AIDS Conference: Abstract no. THPE1085. August 2008.
26 Amon J. Protecting the human rights of people at risk of and affected by TB. 3rd Stop TB Partners Forum, Rio March 2009
27 Amon J. Undocumented Migrants and Drug Users in Asia: Tuberculosis Care and Human Rights. 3rd Stop TB Partners Forum, Rio March 2009
28 Amon J. Protecting the rights of drug users in China. 20th International Conference of the International Harm Reduction Association meeting. April, 2009.
29 Lohman D, Amon J. Pain and Policy: The Battle with Needless Suffering. Unite for Sight, Yale University. April, 2009.
30 Amon J. HIV testing for hard-to-reach populations. In: New Strategies and Controversies in HIV Testing and Surveillance, International AIDS Society Conference. Cape Town, South Africa. July 2009.
31 Amon J. Human Rights context of routine testing. In: Maximizing the benefits of treatment for individuals and communities. International AIDS Society Conference. Cape Town, South Africa. July 2009.
32 Amon J. Scaling up HIV testing through scaling up human rights protections. In: Scaling up
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Biomedical Prevention and Treatment Interventions - The Critical Role of Social Science, Law and Human Rights. International AIDS Society Conference. Cape Town, South Africa. July 2009.
33 Amon J. HIV testing and human rights: competing claims and conflicting views. American Anthropological Association. Philadelphia, PA. December 2009.
34 Pearshouse R, Amon JJ. Engagement with compulsory drug detention centers: a legal and ethical framework. 21st International Conference of the International Harm Reduction Association meeting. April, 2010.
35 Lohman D, Tymoshevska V, Rokhanski A, Kotenko G, Druzhinina A, Schleifer R, Amon J. Availability and accessibility of opioid medications in Ukraine. XVIII International AIDS Conference. July 2010. Abstract no. MOAF0202
36 Jones L, Akugizibwe P, Amon J, et al. Human rights costing of ART for prevention. XVIII International AIDS Conference. July 2010. Abstract no. TUPE1033
37 Lemmen K, Wiessner P, Haerry DHU, Todrys K, Amon J. Deportation of HIV-positive migrants in 29 countries: impact on health and human rights. XVIII International AIDS Conference. July 2010. Abstract no. TUAF0101
38 McLemore M, Winter M, Amon J. Sentenced to stigma: segregation of HIV-positive prisoners. XVIII International AIDS Conference. July 2010. Abstract no. THPE0942
39 Todrys K, Malembeka G, Clayton M, McLemore M, Shaeffer R, Amon J. HIV and TB management in 6 Zambian prisons demonstrate improved but ongoing prevention, testing and treatment gaps. XVIII International AIDS Conference. July 2010. Abstract no. THPDX105 (Awarded prize for best abstract on HIV/TB integration)
40 Pearshouse R, Cohen JE, Amon J. Drug detention centers and HIV in China and Cambodia. XVIII International AIDS Conference. July 2010. Abstract no. MOAF0203
41 Lohman D, Palat G, Nair S, Amon J, Schleifer R. Palliative care: needs of and availability for people living with HIV in India. XVIII International AIDS Conference. July 2010.
42 Kippenberg J, Thomas L, Lohman D, Amon J. Children's access to HIV testing, treatment and palliative care in Kenya. XVIII International AIDS Conference. July 2010.
43 Lohman D, Thomas L, Amon J. Access to pain treatment and palliative care as a human right. XVIII International AIDS Conference. July 2010. Abstract no. WEPE0982.
44 Amon J. HIV and human rights. XVIII International AIDS Conference. July 2010.
45 Amon J. HIV treatment as prevention: human rights issues. HIV10 Conference. Glasgow, Scotland. November 2010.
46 Amon J. TB and human rights in Zambian prisons. IULTB. Berlin, Germany. Nov 2010.
47 Amon J. TB and Human Rights. IULTB. Berlin, Germany. November 2010. (panel chair)
48 Todrys K, Kwon S-R, Burnett M, Lamia M, Amon J. HIV and TB Prevention, Testing, and Treatment in 16 Ugandan Prisons. 6th IAS Conference on HIV Pathogenesis, Treatment and Prevention. Rome, July, 2011.
49 Pearshouse R, Amon J. Drug Detention Centers and HIV In Vietnam. 10th International Congress on AIDS in Asia. August, 2011.
50 Amon J. Reforms to protect health and rights in East African prisons. IULTB. Lille, France. Oct. 2011.
51 Amon J. Ethics and Human Rights in Publishing. (Meet the Editors session). XIX International AIDS Conference. July 2012.
52 Amon J. Balance Between Justice System and Provision of Services. XIX International AIDS Conference. Washington, DC. July 2012. (co-moderator)
53 Amon J. Advancing global health through human rights accountability. IV Consortium of
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Universities for Global Health. Washington, DC. March 2013. 54 Amon J. Enhanced HIV testing in the context of human rights. 8th IAS Conference on HIV
Pathogenesis, Treatment and Prevention. Vancouver, July 2015. 55 Beletsky L, Vera A, Gaines T, Arredondo J, Werb D, Bañuelos A, Rocha T, Rolon ML,
Abramovitz D, Amon J, Brower K, Strathdee SA. Utilization of Google Earth to Georeference Survey Data among People who Inject Drugs: Strategic Application for HIV Research. 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention. Vancouver, July 2015. 56 Amon J. The impact of climate change and population mobility on neglected tropical disease elimination. International Meeting on Emerging Diseases and Surveillance (IMED). Vienna, Nov 2016. 57 Amon J. Getting to Zero: Lessons for NTD Elimination from Successful STH Control Programs. Neglected Tropical Disease NGO Network Annual Meeting. Dakar, Senegal, Sept 2017. (moderator) 58 Hoppe A, Coltart C, Parker M, Dawson L, Amon JJ, et al. Ethical Considerations in HIV Phylogenetic Research. 2018 International AIDS Conference. Amsterdam, Netherlands. 59 Amon J. Epidemic transition: How will we achieve it while ensuring equity and quality? 2018 International AIDS Conference. Amsterdam, Netherlands.
INVITED LECTURES
1 University of North Carolina School of Public Health (March 2006) 2 Duke University School of Public Policy (October 2006) 3 University of Chicago (October 2006) 4 University of Toronto Law School (November 2006) 5 Columbia University Law School (Dec 2006, 2007, 2009) 6 University of Denver School of International Affairs (March 2007) 7 Georgetown University Law School (April 2007) 8 Columbia University School of International and Public Affairs (Feb and Oct 2007) 9 University of Connecticut School of Law (April 2009) 10 New York University (January 2011, November 2014) 11 University of Zurich (September 2011) 12 Columbia University Mailman School of Public Health (Feb, Nov 2009; Dec 2013; Nov 2014,-15) 13 Yale University Law School (March 2013) 14 Johns Hopkins University Bloomberg School of Public Health (annually: May 2008-2019) 15 UCLA Law School (January 2014) 16 Stanford University Law & Medical Schools (January 2014) 17 University of Melbourne, Nossal Institute for Global Health (July 2014) 18 Fordham Law School (October 2014) 19 Northwestern University (November 2014; Nov 2015) 20 Dornsife School of Public Health, Drexel University (February 2018) 21 University of California San Diego (March 2018)
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Case 1:20-cv-00480-JEJ Document 2-1 Filed 03/24/20 Page 33 of 33 AWARDS
Centers for Disease Control and Prevention, Epidemic Intelligence Service, Mackel Award (Apr 2004) Department of Health and Human Services, Public Health Service, Unit Commendation (Oct 2004) Department of Health and Human Services, Secretary’s Award for Distinguished Service (Aug 2005)
AD HOC REVIEWER
Journals: New England Journal of Medicine, Lancet, International Journal of Epidemiology, STI, Global Public Health, Addiction, Hepatology, Health and Human Rights, Bulletin of the World Health Organization, Journal of the International AIDS Society, PLoS One, PLoS Medicine, Journal of the American Public Health Association, Anthropological Quarterly, Drug and Alcohol Dependence, Conflict and Health, BMC Public Health, Harm Reduction Journal, Law & Social Inquiry, Social Science and Medicine, Health and Human Rights Journal, International Journal of Drug Policy. Grants: Open Society Foundations, Public Health Program
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Exhibit 2

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Jonathan Louis Golob, M.D. Ph.D. Assistant Professor
206 992-0428 (c) 734-647-3870 (o) golobj@med.umich.edu jonathan@golob.org

Education and Training 6/1997 – 6/2001

Bachelor of Science, Johns Hopkins University, Baltimore, MD Dual degree in Biomedical Engineering and Computer Science conferred June 2001.

7/2001 – 6/2011

MSTP MD/PhD Combined Degree, University of Washington, Seattle, WA. Ph.D. on the basic science of embryonic stem cells, specifically epigenetic regulation of differentiation Ph.D. conferred in June 2009. MD conferred in June 2011.

6/2011 – 6/2013

Internal Medicine Residency, University of Washington, Seattle, WA

6/2013 – 6/2017

Infectious Diseases Fellowship, University of Washington, Seattle, WA

Certifications and Licensure Board Certifications

2014 2016

Diplomate in Internal Medicine, American Board of Internal Medicine. Diplomate in Infectious Disease, American Board of Internal Medicine.

Current Medical Licenses to Practice

2013 2018

Washington State Medical License, Physician, MD60394350 Michigan State Medical License, Physician, 4301114297

Academic, Administrative, and Clinical Appointments

Academic

6/2014 – 6/2018

Senior Fellow, Vaccine and Infectious Disease Division, Fred

Hutchinson Cancer Research Center, Seattle, WA

8/2016 – 6/2018

Joel Meyers Endowment Fellow, Vaccine and Infectious Disease Division, Fred Hutchinson Cancer Research Center, Seattle, WA

8/2017 – 6/2018

Research Associate, Vaccine and Infectious Disease Division, Fred Hutchinson Cancer Research Center, Seattle, WA

8/2017 – 6/2018

Acting Instructor, Division of Allergy and Infectious Diseases, Department of Medicine, University of Washington, Seattle, WA

8/2018 – Present

Assistant Professor, Division of Infectious Diseases, Department of Medicine, University of Michigan, Ann Arbor, MI

Jonathan Louis Golob M.D. Ph.D.

January 24 2020

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Clinical 12/2015 – 12/2016 7/2017 – 6/2018 8/2017 – 6/2018 8/2017 – 6/2018
8/2018 – Present

Infectious Disease Locums Physician, Virginia Mason Medical Center, Seattle, WA
Hospitalist Internal Medicine Physician, Virginia Mason Medical Center, Seattle, WA
Attending Physician, Seattle Cancer Care Alliance, Seattle, WA
Attending Physician, Division of Allergy and Infectious Diseases, Department of Medicine, University of Washington, Seattle, WA
Attending Physician, Division of Infectious Diseases, Department of Medicine, University of Michigan, Ann Arbor, MI

Research Interests 1. I am primarily interested in understanding how the human gut microbiome mechanistically affects how patients respond to treatments. I have a particular focus on patients undergoing hematopoietic cell transplant, who are at risk for recurrence of their underlying disease, treatment-related colitis (from both conditioning and graft versus host disease), and infection. In human observational trials the human gut microbiome correlates with each of these aspects. My research program uses advanced stem-cell based in-vitro models of the human colonic mucosa to verify if the correlations in observational trials can cause similar effects in vitro, and then determine by which pathways (e.g. receptors) and broad mechanisms (e.g. epigenetics) the microbes affect the host.
2. Host-microbiome interactions are contextual. A beneficial interaction in health can turn pathologic. For example, my ongoing work focused on the microbial metabolite butyrate. Butyrate enhances the health of heathy and intact colonic epithelium, acting as a substrate for cellular respiration and through receptor-mediate processes reduces cellular inflammation. However, butyrate also blocks the ability of colonic stem cells to differentiate into mature epithelium. Thus, in colitis that results in a loss of colonic crypts, an intact and butyrogenic gut microbiome results in colonic stem cells being exposed to butyrate and inhibits recovery. My ongoing work uses a primary stem-cell based model of the human colonic mucusa to establish how butyrate blocks the differentiation of colonic stem cell with a hope of generating new treatments for patients with steroid-refractory colitis.
3. I am interested in validating and improving computational tools for biological research. I have a computer science and biomedical engineering background that combined with my clinical and molecular biology training positions me optimally to understand both major aspects of computational biology: what are the needs to make biological inferences from big data, and how can tools specifically be improved to achieve such inferences.

Jonathan Louis Golob M.D. Ph.D.

January 24 2020

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Grants Present and Active
ASBMT New Investigator Award J. Golob (PI) 7/2018 – 7/2020 Hematopoietic Cell Transplant Outcomes and Microbial Metabolism Role: PI $30,000/yr for up to two years

NIH / NIAID R01

D. Fredricks (PI)

11/2017 – 11/2021

The Gut Microbiota and Graft versus Host Disease (GVHD), AI-134808

Role: Senior / key personnel

$823,701

NIH P01

T. Schmidt (PI)

Pending / Reviewed

ENGINEERING MICROBIOMES AND THEIR MOLECULAR DETERMINANTS FOR

PRODUCTION OF BUTYRATE AND SECONDARY BILE ACIDS FROM RESISTANT

STARCH

Role: Key Personnel

NIH / NCI R21

J. Golob (PI)

Pending / Submitted

Establishing a physiologic human colonic stem/progenitor cells model of regimen-related

colitis

Role: PI

NIH R21

J. Golob (PI)

Pending / Submitted

Manipulating Butyrate Production by the Gut Microbiome during Chronic HIV Infection

Role: PI

Completed
Joel Meyers Endowment Fellowship Role: Research Fellow $63,180

6/2016 – 6/2018

DCDR Grant

R. Harrington (PI) 6/2014 – 6/2018

Support for data queries into the Deidentified Clinical Data Repository

Role: PI

$1000

NIH T32 Institutional Training Grant 1T32AI118690-01A1 Role: Post-Doc Trainee $315,972

M. Boeckh (PI)

8/2016 – 8/2017

NIH T32 Institutional Training Grant 5T32AI007044 Role: Post-Doc Trainee $1,527,801

W. van Voorhis (PI) 7/1/14 – 6/30/16

Honors and Awards

2001

Tau Beta Pi Engineering Honor Society

2001

Alpha Eta Mu Beta Biomedical Engineering Honor Society

Jonathan Louis Golob M.D. Ph.D.

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2005 2015 2016

ARCS Fellowship Consultant of the Month Award. University of Washington Housestaff. Joel Meyer Endowment Fellow

Membership in Professional Societies

2013

Member, Infectious Diseases Society of America

2011

Member, American Board of Internal Medicine

Bibliography Peer-Reviewed Journals and Publications
f. Gao Z, Golob J, Tanavde VM, Civin CI, Hawley RG, Cheng L. High levels of transgene expression following transduction of long-term NOD/SCID-repopulating human cells with a modified lentiviral vector. Stem Cells 19(3): 247-59, 2001.
h. Cui Y, Golob J, Kelleher E, Ye Z, Pardoll D, Cheng L. Targeting transgene expression to antigen-presenting cells derived from lentivirus-transduced engrafting human hematopoietic stem/progenitor cells. Blood 99(2): 399-408, 2002.
i. Boursalian TE, Golob J, Soper DM, Cooper CJ, Fink PJ. Continued maturation of thymic emigrants in the periphery. Nature Immunology 5(4): 418-25, 2004.
j. Osugi T, Kohn AD, Golob JL, Pabon L, Reinecke H, Moon RT, Murry CE. Biphasic role for Wnt/beta-catenin signaling in cardiac specification in zebrafish and embryonic stem cells. PNAS 104(23): 9685-9690, 2007.
l. Golob JL, Paige SL, Muskheli V, Pabon L, Murry CE: Chromatin Remodeling During Mouse and Human Embryonic Stem Cell Differentiation. Developmental Dynamics 237(5): 1389-1398, 2008.
m. Golob JL, Kumar RM, Guenther MG, Laurent LC, Pabon LM, Loring JF, Young RA, Murry CE: Evidence That Gene Activation and Silencing during Stem Cell Differentiation Requires a Transcriptionally Paused Intermediate State. PLoS ONE 6(8): e22416, 2011.
n. Golob JL, Margolis E, Hoffman NG, Fredricks DN. Evaluating the accuracy of amplicon-based microbiome computational pipelines on simulated human gut microbial communities. BMC Bioinformatics 18(1):283, 2017.
o. MacAllister TJ, Stednick Z, Golob JL, Huang, ML, Pergam SA. Under-utilization of norovirus testing in hematopoietic cell transplant recipients at a large cancer center. Am J Infect Control pii: S0196-6553(17)30783-6. doi: 10.1016/j.ajic.2017.06.010. [Epub ahead of print], 2017.
r. Golob JL, Pergam SA, Srinivasan S, Fiedler TL, Liu C, Garcia K, Mielcarek M, Ko D, Aker S, Marquis S, Loeffelholz T, Plantinga A, Wu MC, Celustka K, Morrison A, Woodfield M, Fredricks DN. The Stool Microbiota at Neutrophil Recovery is Predictive for Severe Acute Graft versus Host Disease after Hematopoietic Cell Transplantation. Clin Infect Dis doi: 10.1093/cid/cix699. [Epub ahead of print], 2017.
fs. Bhattacharyya A, Hanafi LA, Sheih A, Golob JL, Srinivasan S, Boeckh MJ, Pergam SA, Mahmood S, Baker KK, Gooley TA, Milano F, Fredricks DN, Riddell SR, Turtle CJ. Graft-Derived Reconstitution of Mucosal-Associated Invariant T Cells after Allogeneic Hematopoietic Cell Transplantation. Biol Blood Marrow Transplant pii: S10838791(17)30758-9. doi: 10.1016/j.bbmt.2017.10.003. Epub 2017 Oct 9.
ff. Ogimi C, Krantz EM, Golob JL, Waghmare A, Liu C, Leisenring WM, Woodard CR, Marquis S, Kuypers JM, Jerome KR, Pergam SA, Fredricks DN, Sorror ML, Englund JA, Boeckh M. Antibiotic Exposure Prior to Respiratory Viral Infection Is Associated with Progression to Lower Respiratory Tract Disease in Allogeneic Hematopoietic Cell

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Transplant Recipients. Biol Blood Marrow Transplant. 2018 May 16. pii: S10838791(18)30268-4. doi: 10.1016/j.bbmt.2018.05.016. [Epub ahead of print] fh. Golob JL, Stern J, Holte S, Kitahata MM, Crane HM, Coombs RW, Goecker E, Woolfrey AE, Harrington RD. HIV DNA levels and decay in a cohort of 111 long-term virally suppressed patients. AIDS. 2018 Sep 24;32(15):2113-2118. doi: 10.1097/QAD.0000000000001948. fi. Golob JL, DeMeules MM, Loeffelholz T, Quinn ZZ, Dame MK, Silvestri SS, Wu MC, Schmidt TM, Fiedler TL, Hoostal MJ, Mielcarek M, Spence J, Pergam SA, Fredricks DN. Butyrogenic bacteria after acute graft-versus-host disease (GVHD) are associated with the development of steroid-refractory GVHD. Blood Adv. 2019 Oct 8;3(19):2866– 2869.
Preprint publications 1. Golob JL and Minot SS. Functional Analysis of Metagenomes by Likelihood Inference (FAMLI) Successfully Compensates for Multi-Mapping Short Reads from Metagenomic Samples. Preprint. doi: https://doi.org/10.1101/295352
Other Publications
f. Science Columnist and Writer for The Stranger, Seattle, WA, 2004 – Present h. Freelance contributor, Ars Technica, 2016 – Present.
Abstracts (presenter underlined) f. Golob JL, Srinivasan S, Pergam SA, Liu C, Ko D, Aker S, Fredricks DN. Gut Microbiome Changes in Response to Protocolized Antibiotic Administration During Hematopoietic Cell Transplantation. ID Week, Infectious Diseases Society of America, October 2015 (Oral) h. Golob JL, Stern J, Holte S, Kitahata M, Crane H, Coombs R, Goecker E, Woolfrey AE, Harrington RD. HIV reservoir size and decay in 114 individuals with suppressed plasma virus for at least seven years: correlation with age and not ARV regimen. IDWeek 2016, October 26-30, 2016, New Orleans. Abstract 953 (Oral). i. Golob JL , Stohs E, Sweet A, Pergam SA, Boeckh M, Fredricks DN, and Liu C. Vancomycin is Frequently Administered to Hematopoietic Cell Transplant Recipients Without a Provider Documented Indication and Correlates with Microbiome Disruption and Adverse Events. ID Week, Infectious Diseases Society of America, October 2018 (# 72504). j. Impact of Intestinal Microbiota on Reconstitution of Mucosal-Associated Invariant T Cells after Allogeneic Hematopoietic Stem Cell Transplantation. ASH 2018 (#3393).
Invited Lectures 1. Keynote Speaker, ARCS Foundation Annual Dinner. Seattle, WA Nov 3, 2008 2. Primary Care Conference: Direct to Consumer Genetic Testing, Seattle, WA, Mar 14, 2013 3. “IRIS and TB”, Harborview Medical Center Housestaff Lunchtime Conference, Seattle, WA, Jun 9, 2014 4. “Complicated Enterococcal Endocarditis”, University of Washington Medical Center (UWMC) Chief of Medicine Conference, Seattle, WA, Jul 14, 2014 5. “Coccidiomycosis”, UWMC Chief of Medicine Conference, Seattle, WA, Oct 7, 2014 6. “HIV and CMV encephalitis”, UWMC Chief of Medicine Conference, Seattle, WA, Apr 14, 2015 7. Research Presentation for GVHD Group Meeting, Seattle, WA, Nov 2015

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8. “CMV Ventriculitis”, Clinical Case Presentation to the Virology Working Group, Fred Hutchinson Cancer Research Center (Fred Hutch), Seattle, WA, Nov 2015
9. “Microbiome and HCT Outcomes”. 1st Infectious Disease in the Immunocompromised Host Symposium – Tribute to Joel Meyers. Fred Hutch, Seattle, WA, Jun 13 2016.
10. “Microbiome and GVHD”. Infectious Disease Sciences / Virology Symposium, Fred Hutch / UW, Seattle, WA, Jan 17 2017
11. “Microbiome and GVHD”. 2nd Symposium on Infectious Disease in the Immunocompromised Host. June 19 2017
12. “The Gut Microbiome Predicts GVHD. Can It Be Engineered to Protect?”. St Jude. February 18th 2019

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Exhibit 3

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Declaration of Bharatkumar G. Thakker
1. My name is Bharatkumar G. Thakker. I’m 65 years old and originally from India.
2. I submit this declaration in support of a of a multi-plaintiff petition for a writ of habeas corpus in federal court based on the risks that I and others face because of COVID-19.
3. I came to the United States in 1973 and have lived here ever since with my family. All my family is in the United States – my wife, our three sons, and my elderly mother. They are all United States citizens.
4. I have been detained for 27 months at Pike County Correctional Facility. ICE detained me after I was arrested in 2017 for trying to steal a battery from a store. I know I should not steal and I feel remorse about it. I tried to get help because I am a kleptomaniac. I went to a psychiatrist. I have some other convictions too for petty thefts like this, like in 2014, when I stole three DVDs from a store.
5. I am afraid for my health because of COVID-19. I understand because of my age and health problems I am at high risk if I get infected.
6. I had a heart stent put in in 2006. Right now, I take 11 pills a day. I have high blood pressure (a recent reading was 195 over 100) and my kidneys are not fully functioning. My most recent reading was at 30% to 35%. They told me when my kidneys are at 20% I will have to go on dialysis. I also have high cholesterol.
7. Since September 2019, I have lost 15 pounds. I do not have much of appetite. Right now I weigh 125 pounds. They give me a supplemental shake at night if I want it and a peanut butter sandwich because I do not eat all my meals.
8. Before I was detained, I would catch a cold every two or three years. Now I get a cold every winter. This last winter I also had flu like symptoms twice already—fever, headache, and a runny nose.
9. I have also been hospitalized twice during my time at Pike. The first time was in March or April 2018. I was in my in cell, and I felt dizziness and short of breath. I called the CO and he called medical department. They decided to send me to the hospital where I was evaluated and then sent back to Pike.
10. The second time I was hospitalized was in July 2019. I had come out of the shower and was short of breath. A correctional officer saw and called down to medical, and they checked me. They called the doctor, and sent me to the hospital. At the hospital they did an examine. They told me I might have had a minor heart attack. They sent me back after two days.
11. In my housing block H there are 48 men. I share a cell with 2 other people. It is probably about 8 by 10 or 8 12. There is one bunk bed and a single bed.
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Case 1:20-cv-00480-JEJ Document 2-3 Filed 03/24/20 Page 3 of 3
12. It is impossible for me to practice social distancing where I am. At any given time during the day, I am usually within 2 feet of someone else. Even our common area – the day room, we cannot be spaced out. The benches seat about 6 men each, it is not bigger to fit more than us. It is the same where we eat – there is not enough space to distance ourselves.
13. Several men in my block are older like me and I worry about them. There are three or four men right now that are coughing. I went to the nurse last week and asked her if I should be worried about the corona virus. She told me no I shouldn’t be and that I should take care of myself. But I am worried. I am watching the news and talking with my family.
14. There is a unit worker who does the cleaning in the common areas like the bathroom, but they get paid $1 a day, so I don’t know how thorough they really are. We clean our own almost every day and do the best we can, but we share a mop bucket with the entire block, so I don’t know how clean we can make it.
15. There is a block called C on quarantine. It has been like this for about two weeks. No inmates are brought out and new ones are not sent in there. It has 48 men. We have not been officially told why they are on quarantine, but I heard they have symptoms similar to the corona virus.
16. There is also a special medical unit (SMU) with six men right now. I do not know why they are there.
17. I have not seen the correctional officers wearing any protective gear.
18. My cellmate started coughing yesterday. He went to medical today. He has the chills and has been achy all day. I have been coughing for a few days. Today, I started to feel weak and dizzy. I told the CO and asked for medical to me. I hope they bring down soon to medical. My bed is about three feet away from my cellmate.
19. We are all so close together here, if anyone is infected, it will spread really quick. I am afraid.
I, Vanessa L. Stine, certify that I have read the foregoing to Mr. Thakker and that he affirmed that the foregoing is true and correct on March 22, 2020 and that new information was provided on March 23, 2020, which was added to paragraph 18. At the time I reviewed the foregoing declaration with Mr. Thakker he certified that everything was true and correct.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 2-4 Filed 03/24/20 Page 1 of 4
Exhibit 4

Case 1:20-cv-00480-JEJ Document 2-4 Filed 03/24/20 Page 2 of 4
Declaration of Adebodun Adebomi Idowu
1. My name is Adebodun Adebomi Idowu. I am from Nigeria and am 57 years old. I have a U.S. citizen wife and U.S. citizen brother.
2. I have lived in the United States since 2012. I entered as a lawful permanent resident. I am seeking immigration relief under the Convention against Torture (CAT). I have a criminal history—I was convicted of money laundering. I feel remorse for what I did and served my time.
3. I have been detained by ICE for 17 months. Because of my health issues, I understand I am at a high risk should I contact COVID-19. I am worried for myself and for other detainees I know.
4. I have lived with type II diabetes since 2000. I take medication for my diabetes – 2 pills in the morning and 2 pills at night. The medications are insulin, Janumet, and Metformin twice a day to treat my condition. I also take medication twice a day for my high blood pressure (even with medication a recent read was 154/94). I also take medication once a day for my high cholesterol.
5. I receive medication from the health center at Clinton County Correctional Facility, but sometimes they run out of my medication. This has led to me being hospitalized three times.
6. The first time I was hospitalized was in 2018. I was at the hospital in Williamsport for about 24 hours and they brought me back.
7. The second time was in July or August 2019. I was at the hospital for two nights. This was also at Williamsport.
8. The third time was in December 2019. It was bad. They ran out of my insulin and I did not have it two days. My sugar was at 600 mg/dL. I passed out. They had to use an oxygen mask for me. They rushed me the hospital in Lock Haven, where I spent two nights.
9. The jail talked to ICE after this because all my medical needs are expensive to see if they would release me. Recently I talked to someone in medical and they told me they did not know why me and the other guys who are vulnerable are not just released. That scared me.
10. It is impossible for me to maintain a safe distance of six feet with the guys I am housed with. I would say I am normally two to three feet from at least one other guy at any time, and usually it is several guys.
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Case 1:20-cv-00480-JEJ Document 2-4 Filed 03/24/20 Page 3 of 4
11. There are 72 of us in one unit. It is a dormitory style so it all open with bunk beds. But the beds are close together—like the length of your arm. It is close. The beds are in six rows and then there is a small knee height barrier and then another seven rows of beds.
12. Same goes for where we spend time during the day and where we eat. This is in the day room, which is really in the same space as where we sleep. The only divider is a knee height divider between our beds and the day space. In the day space, there are six round tables that seat eight to nine guys close to one another, like shoulder to shoulder, touching.
13. It is hard to maintain good hygiene here. We all try but the bathrooms are small. There are two bathrooms with two sinks each. There are two shower rooms with two shower each. But four showers for 72 men is not a lot and they get dirty. We clean them once a day but it is hard to keep clean. Whether we get gloves depends on the CO, some give us gloves some do not.
14. I have not seen staff taking any precautions. In fact, last week a CO was sick and he was coughing. He said he was sick but has not been back for a few days. None of the COs are wearing masks or gloves.
15. Also last week, I think on Thursday, they brought in four new guys into our unit. They said they were not asked about contact with anyone with COVID-19. They were not tested.
16. I am really worried about my health here at Clinton County Correctional Facility. I know I am at high risk because of all my health problems and I don’t know what will happen. They have not even been able to keep my sugar levels steady, so I don’t know what kind of treatment they would give to me. Even right now I am sneezing and coughing. I worry about what will happen to me if I get the virus. I am scared. We all are.
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Case 1:20-cv-00480-JEJ Document 2-4 Filed 03/24/20 Page 4 of 4 I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Idowu by telephone on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union Of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 2-5 Filed 03/24/20 Page 1 of 4
Exhibit 5

Case 1:20-cv-00480-JEJ Document 2-5 Filed 03/24/20 Page 2 of 4
Declaration of Courtney Stubbs
1. My name is Courtney Stubbs. I am 52 years old. I came to the United States from Jamaica in 1991. I have lived here ever since.
2. I met my fiancé 12 years ago. We have a beautiful 9-year-old son together.
3. I have a lot of health issues and am autoimmune compromised. Right now I take about 12 pills a day. I also used to take three vitamins but I cannot get those since being detained.
4. In October 2014, I received a kidney transplant. I have to take medication every day to make sure my body does not reject it. I’m also diabetic – I have Type II diabetes. I had blood clots and had a heart stent put in in 2018.
5. In 2001, I was convicted of conspiracy to distribute marijuana. It was while I was serving my sentence that I went into kidney failure and began dialysis. After I was released, I ended up getting put into removal proceedings and then because of my health issues, I was placed on Order of Supervision (OSUP) with ICE. For 14 years, I complied with the OSUP. I used to have check-ins with ICE every week. Then they moved to it once a month, then once a year. I always complied and communicated with ICE officer on my case.
6. In February 2019, they starting doing home visits again. I don’t know why. They put an ankle bracelet on me too. Then told me I had to get a ticket and leave – I could not believe it. In June 2019, they said I should come back in one week and bring my medication and verify I was taking all my medications and they would put me on a new program. When I got there, they detained me. Had I known they were going to do this, I would not have driven (my fiancé had to pay a bunch of money to get my car weeks later). I would have given my son an extra hug.
7. I have been detained at Pike since June 2019. ICE has sent my medical records to Jamaica three times. Each time Jamaica has told them no because my health issues and my medications cost a lot. I know ICE is trying to get them to do this but with the corona virus who knows.
8. I understand that my health conditions make be highly vulnerable to the corona virus. I am worried. I have asked staff about the corona virus. I have no information about what they are doing. I know C block is quarantined, but no one will say why.
9. I have a lot of medical needs. While Pike has been providing me medical care I do not feel like it has been enough. For example, it is very important that my creatinine levels are checked to make sure I am not rejecting my kidneys or going into kidney failure. My doctor who was treating me before I was detained for my kidneys has called Pike to tell them this, and so have I and my fiancé. They said they checked my levels but the test is inconclusive. I do not understand why since they drew my blood.
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Case 1:20-cv-00480-JEJ Document 2-5 Filed 03/24/20 Page 3 of 4
10. My health has worsened since I have been detained. For one thing, I can’t really sleep at night. I talked to medical about something to help with that. They gave me an antidepressant, but it does not really help me sleep.
11. My fiancé told me about everything going on with the virus and how they are telling people to do social distancing. But I can’t do that – I am always within a few feet of people. Even if I stay in my cell, I am still within a five feet of my cellmates. When I go to eat, same thing. When I go to medical, same thing.
12. Every morning around 5:30am I have to get my blood sugar tested. On the weekdays, they come to us but on the weekend I have go down to medical. Everyone from the different units are brought down together. About two or three weeks ago, I saw that the COs from intake started to wear masks.
13. My housing unit is H. There are 47 or 48 men. We sleep three to a cell. There is a bunk bed on one side and a single bed on the other. There is also a toilet and sink. I am no more than 5 feet away from my cellmates in our cell.
14. Outside my cell is the day room. The day room is where we hang out between meals. It is also where we eat. There are four long tables that seat about six men each. There are also two game tables and two folding tables. When we are seated we are within inches of each other.
15. There is a TV in the dayroom. We used to watch CNN sometimes but beginning last week, I think Monday, March 16, they stopped showing the news. Now it is Netflix all the time. We used to ask the COs to put on Netflix to watch movies and they wouldn’t. Now it is the only thing they put on. I feel like they did this so we do not get information about the corona virus.
16. We get three pieces of soap each night before we go to bed. It is for all three of us in our cell. They are about the size of four quarters. We have to use the soap to wash our hands in the cell, and to shower with. We don’t get more soap until the next night. Sometimes when people leave we try to get their extra soap, but we are not allowed to have it—it is treated like contraband. They take it from us. There is no common area to wash our hands, so every time we need to wash our hands we have to go to our cells.
17. We get two hours of recreation time a day. I do not really use it but others from my block do. They go to the rec yard. It used to let out just one block at a time, but now it is two blocks together, and it varies. Sometimes it is G and H blocks sometimes it is G and K blocks, or H and K blocks.
18. My new cellmate has been coughing. He came over about two weeks ago from another block.
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19. I am really concerned about my health with the corona virus. I feel like they do not care about us – they try to cut off our information, they tell us nothing, and we just stay in close quarters. I am high risk. I have a lot health issues and am very fearful.

I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Stubbs by telephone on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.

Dated: March 23, 2020

/s/ Vanessa L. Stine Vanessa L. Stine AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org

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Case 1:20-cv-00480-JEJ Document 2-6 Filed 03/24/20 Page 1 of 4
Exhibit 6

Case 1:20-cv-00480-JEJ Document 2-6 Filed 03/24/20 Page 2 of 4
Declaration of Danielle Arizzi
1. My name is Danielle Arizzi. My fiancé Courtney Stubbs has been detained at Pike since June 25, 2019—which is about 9 months. Courtney had been on an order of supervision with ICE for 14 years. He always complied. In June, ICE told him to come to the office, and to bring his medication. He was told it was for a new program. Instead, they detained him. ICE misplaced his wallet and keys and it took me weeks to get it. All that time his car was sitting in a lot. I had to get a new key cut and pay the parking cost. It cost me $750.
2. His detention has been really hard on our family. Courtney and I have a 9-yearold son together. Our son is having a hard time dealing with this. He has fallen behind in school. He went from one of the happiest kids in school to a totally different kid who is acting out and struggling. It has also been really hard on me emotionally.
3. With the corona virus I am really worried about by fiancé. I work as a dialysis technician so I understand the need to take precautions right now to lessen the spread. But that is impossible at Pike. And my fiancé has serious health issues that made him very vulnerable. He received a kidney transplant from a family of a young man. They gave it to save a life. I do not want their donation to be for nothing. But I fear for my fiancé’s life.
4. He takes something like a dozen pills a day. Because of his kidney transplant he takes medication every day for that. Missing a day or two could be really serious and make him go back into kidney failure. He also has other medical issues, including diabetes and is autoimmune compromised. He also has heart disease.
5. Jamaica will not accept him right now. ICE already tried three times and Jamaica said no after looking at Courtney’s medical records. They said they did not have the means to care for him. ICE told me they would try again next month. But with the coronavirus I don’t think Jamaica will be accepting deportees.
6. I keep calling the ICE officer assigned to Courtney’s case but he just tells me I have to wait. When I asked him about the coronavirus and said Courtney is very vulnerable he said they have his medical records so they know. I asked him what they were doing about it, like what precautions they were taking and he told me he did not know he was not a doctor. He told me to call the jail. So I did. But no one has answered me.
7. On March 16, 2020, I emailed Governor Wolf and asked him to please help my fiancé. I did not hear back so I emailed him again on March 19. Someone from his office emailed me back that the issue is managed by the federal government.
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Case 1:20-cv-00480-JEJ Document 2-6 Filed 03/24/20 Page 3 of 4 They told me to contact my Senators – Pat Toomey and Bob Casey. I sent them emails through their webpages on March 19. I have not heard back. 8. On March 18, called prison – and wanted to know and what was going on given the corona virus. They did not give me any specifics or answer my questions. So I wrote to the Assistant Warden, Jonathan J. Romance, the next day (March 19). I asked him whether they had plans to release any of the elderly detainees or those with health issues. He has not responded to me. 9. I am afraid my son will grow up without his father because he will die if he continues to be detained. Courtney is very vulnerable to the corona virus and I am very worried I can barely sleep.
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Case 1:20-cv-00480-JEJ Document 2-6 Filed 03/24/20 Page 4 of 4

Case 1:20-cv-00480-JEJ Document 2-7 Filed 03/24/20 Page 1 of 2
Exhibit 7

Case 1:20-cv-00480-JEJ Document 2-7 Filed 03/24/20 Page 2 of 2
Declaration of Rigoberto Gomez Hernandez
1. My name is Rigoberto Gomez Hernandez. I am 52-years-old and from Mexico. I have two U.S. citizen children (daughter, age 6, son age 11). I am also married. My older brother is a lawful permanent resident. I have lived in the United States continuously since 2005.
2. I have been detained by ICE since September 2019. ICE detained me after a criminal contact.
3. I understand that I am at high risk if I am exposed to COVID-19 because of my health issues.
4. I have diabetes and take medication for an ulcer, which has been operated on twice (before I was detained). I also have some dental problems—two of my crowns need to be fixed. But it is expensive so they said they cannot do it. They give me Tylenol for the pain.
5. For my diabetes I am not quite sure what is going on. I know I was told I had diabetes before I was detained at a community health center. Since I’ve been detained I have had two blood draws for some tests, but I do not know the results. The last test was a month ago. They do not talk to me about the results, I am not sure why. The doctor does not speak Spanish so communication can be little hard.
6. I hear you are supposed to maintain space between people, like six feet. It is impossible for me to do that. There are 48 of us in the block and not a lot of space.
7. I am worried about the coronavirus and what could happen to me.
I, Vanessa L. Stine, certify that I reviewed this declaration with Rigoberto Gomez Hernandez by reading it to him in Spanish by telephone on March 23, 2020 and that he certified that the declaration was true and correct to the best of knowledge.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union Of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 2-8 Filed 03/24/20 Page 1 of 4
Exhibit 8

Case 1:20-cv-00480-JEJ Document 2-8 Filed 03/24/20 Page 2 of 4
Declaration of Rodolfo Agustín Juarez Juarez
1. My name is Rodolfo Agustín Juarez Juarez. I am from El Salvador and I am 21 years old.
2. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that I and others face because of COVID-19.
3. I arrived in the United States four years ago from El Salvador. I have been detained in York County Prison since February 26, 2020.
4. I fled El Salvador with my mother when I was 16-years-old. I have filed an asylum application, which remains pending before the immigration court.
5. I was diagnosed with diabetes seven years ago and was taking medication for it prior to my detention.
6. For the past few weeks I have been suffering with a fever, throat pain, a persistent cough and have trouble breathing. I have also had nose bleeds.
7. I have been taking prescribed medicine for my fever but the medication has not helped with my symptoms and my troubled breathing bothers me a lot.
8. When I request medical attention I have to submit a ticket and usually am not seen until a day or two later. Sometimes longer.
9. I have observed other detainees not receive medical attention right away. One time there was another inmate who was vomiting and he was still required to submit a medical request. He was seen by medical staff the next day but he spent all night vomiting.
10. Because of my diabetes, I understand that I am at a high risk should I contract COVID-19.
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Case 1:20-cv-00480-JEJ Document 2-8 Filed 03/24/20 Page 3 of 4
11. I am very concerned about my health but I don’t think that the staff here are able to respond properly. Even though I have trouble breathing, I cannot be tested for COVID-19 because they do not have tests available at York County Prison.
12. I sleep on the top bunk with an air vent directly above me. The cold air from the vent worsens my condition. I have requested a bottom bunk but was told that only people who have had back surgery can get a bottom bunk.
13. I am in a block with 56 people and we are all held in one large area. Our beds are not far apart and if someone sneezes or coughs, the whole block can hear it.
14. It is physically impossible for us to stay six feet apart from other people at the facility. There are too many of us in one space, even if I tried to keep my distance, it is just not possible. For instance, while eating, we all sit on small tables, with four people on each table. We are probably only one or two feet apart from each other.
15. Any efforts to make the facility more sanitary are made by us detainees. We all drink from two water fountains that are not cleaned often. If they are ever cleaned, it is done by us. We also share phones and tablets, which we try our best to clean since we know a lot of people are using them. But there is only so much we can do on our own.
16. The only thing we’ve been told to do to protect ourselves from the virus is wash our hands but they do not provide soap to you unless you ask for it. We are not given hand sanitizer. Washing my hands is not enough to ensure my personal safety in detention when I am so close to so many other people all the time.
17. The people that work here do not have their temperature checked when they come in. They do not wear any gloves or masks. Even the medical staff do not always wear gloves or masks when they see us.
18. I am in the cleaning unit and clean the area once or twice a day but cleaning and sanitizing the area is not effective when so many people come in and out of our unit every day.
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Case 1:20-cv-00480-JEJ Document 2-8 Filed 03/24/20 Page 4 of 4
I, Muneeba S. Talukder, certify that I reviewed this declaration with Rodolfo Agustín Juarez Juarez over video on March 22, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.

Dated: March 22, 2020

/s/ Muneeba S. Talukder Muneeba S. Talukder AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 2-9 Filed 03/24/20 Page 1 of 4
Exhibit 9

Case 1:20-cv-00480-JEJ Document 2-9 Filed 03/24/20 Page 2 of 4
Declaration of Meiling Lin
I, Meiling Lin, hereby declare
My name is Meiling Lin, I am from China. I am 45 years old. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that I and others face because of COVID-19
1. I arrived in the United States March 29, 2019 from China. I was detained on arrival and have been detained in York Detention Center for a year now.
2. I fled China last year and filed for asylum and my case is under appeal at the Board of Immigration Appeals
3. My immigration attorney filed a request for my parole in January 2020.
4. I was diagnosed with chronic hepatitis B virus in 2006. My doctor in China told me my condition was serious and advised me to take medication for it. I also have liver disease.
5. I was forcibly sterilized in China and suffer from severe chronic pain as well as other medical complications as a result of that surgery. I often wake up at night from the severe cramping and pain in my stomach and uterus. It feels like pins and needles. I also experience irregular menstruation because of that surgery.
6. My left leg has a lot of pain and it is hard for me to sit down and get up.
7. Recently I started experiencing a lot of chest pain as well but the doctor at York County Prison could not tell me why I was having that pain.
8. At my last doctor’s visit, I was told that I need a colonoscopy and that I likely have liver damage but there has been no follow up and I do not know when I will be having the colonoscopy procedure done.
9. I have so many medical issues but I do not like going to the doctor. They put me in handcuffs and shackle my feet which leaves bruises on my legs and harms. It is very humiliating. I have done nothing wrong and I just wanted to leave from a country that did not give me freedom and forced me to have a surgery that has resulted in so many health problems for me.
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Case 1:20-cv-00480-JEJ Document 2-9 Filed 03/24/20 Page 3 of 4
10. I receive medication from the clinic at York County Prison for the severe pain I experience but the medication does not help me.
11. Because of my chronic hepatitis B, liver disease, and my chronic pain, I understand that I am at a high risk should I contract COVID-19.
12. I am worried about my health and York County Prison has not done anything differently to address the threat of COVID-19 spread.
13.I am in a block with around 50 people and. Our beds are about 3-4 feet apart. I cannot stay 6 feet away from my fellow block mates because there is simply not enough space for us to do this.
14. We all sit together when we eat and are given food in trays that are open and exposed to the air that we are all sharing.
15.We all share three phones and eleven tablets among 50 people. This is not sanitary. I try to clean the phones and tablets before I use them but they are not being cleaned otherwise.
16. We also share a total of six toilets and six showers. I know that the bathrooms and showers are cleaned but since 50 people are using them, they get dirty quickly. I feel afraid to use the bathrooms but I have no other choice.
17. The staff at York County Prison sometimes give announcements but there is no interpretation of these announcements and I can only speak and understand Mandarin so I don’t know what they are saying. If they are giving advice on how to prevent the spread of COVID-19 I do not know what it is. There isn’t even anyone here who can translate for me.
18. The staff are leaving and coming into the facility every day and I am afraid that they could be bringing in COVID-19.
19.If released, I would live with my daughter who has lawful permanent status and is in California.
I, Muneeba S. Talukder, certify that I reviewed this declaration with Meiling Lin over video on March 22, 2020. I also certify that I used professional interpretation service
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Case 1:20-cv-00480-JEJ Document 2-9 Filed 03/24/20 Page 4 of 4
for Mandarin in order to read the declaration to Meiling Lin in English and that she certified that the declaration was true and correct to the best of her knowledge.

Dated: March 22, 2020

/s/ Muneeba S. Talukder Muneeba S. Talukder AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 2-10 Filed 03/24/20 Page 1 of 4
Exhibit 10

Case 1:20-cv-00480-JEJ Document 2-10 Filed 03/24/20 Page 2 of 4
DECLARATION OF HENRY PRATT
1. My name is Henry Pratt. I am 50-years-old and from Liberia. I have been in ICE detention for three years. I am a lawful permanent resident. I fled in 1990 during the Liberian civil war and ended up in the United States, where I won asylum.
2. I ended up in immigration proceedings after I was convicted of fraud, forgery, and theft. I am still fighting my removal case. I initially sought cancellation of removal along with asylum and withholding of removal. I continue to fight my case. I represent myself.
3. I have diabetes and high blood pressure. I am worried because I am high risk if I get COVID-19.
4. I take medication for diabetes and high blood pressure. Right now, I take Metformin in the AM and PM, 1000 mg each time. But I have had issues with getting my medication. My stomach would get upset in the morning if I took my medication and sometimes I would vomit. So my sister talked to the medical department for me and helped explain this. But then the medical department staff changed. And the nurse who took over my medication starting giving it to me in the morning. I told her I could not take it in morning because I would vomit and needed it around 11 or 12. She just stopped giving me my medication, which is not what I was asking for.
5. Without my medication, my sugar got really low and I fell down. A CO saw and he called for help. I had blood in my urine. That is when the Warden, Associate Warden and Captain stepped in. I told them what was going on with my medication and they looked at my records and I guess saw I had not taken my medication for over a month, so they worked out a plan to get me my medication at 11 or 12 so it would be effective and not upset my stomach.
6. We heard all about the need to be doing social isolation but that is impossible in here with 72 guys in my dorm. We are usually not even two feet apart. I mean, I can reach out and touch the guy next to me in the next bunk. One time a guy asked me if I was trying to get something from his bunk because he felt my hand and I just laughed and told him no, I was sleeping. That is how close we are.
7. The dorm layout is as follows. When you walk in it is the day space. Then there is the little divider wall that is knee height. Then it is our beds. There are rows of bunk beds, I think 6 rows, with 5 bunks in each row. Then there is a divider (knee height) and some more rows, 7 rows, with 5 bunks in each row.
8. And the tables where our day space is no better in giving us space. There are not even enough tables and chairs for the guys. So some guys eat in their beds and other guys put food on their lap and sit in some other chairs that are around.
1

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9. It is hard to have good hygiene around here not because we do not try but because of the conditions. The bathrooms are run down. There are four sinks and four showers for 72 guys. There is soap for us, but with so many guys, I do not know how clean they can really keep it. We clean it ourselves but again, not sure we are really keeping it sanitized. We try our best.
10. We also see bugs sometimes in the bathroom, along with mice or rats in the drainage and in between some spaces on the wall where the water pipe is at. I sometimes see rats or mice too in the florescent lighting – it is long, about 10 big lights in a row above the day space. I can see them running sometimes through the lights. I do not think that helps with sanitation.
11. We also have issues with keeping our clothes clean because the washer keeps breaking. This has been going on since October. Sometimes you put your clothes in and there is just a bunch of water that spills out. Then they have to fix it, it takes hours. So the issue is that we only get two sets of clothes—2 jumpsuits, 2 t-shirts, 2 boxers. So if you sweat one day and change clothes to your spare outfit, you have to wash the next day. But sometimes we can’t, so we try to wash our clothes in the bathroom which does not work that well.
12. I feel that Clinton County Correctional Facility does not want to address the situation about COVID-19. I asked the COs about it and they told me no one was being tested because they do not have the test at the facility.
13. I was also able to find out from a CO that they are not screening newly arriving detainees for COVID-19. I understand this to mean they are not testing anyone.
14. COs have also come in sick recently. This one CO he was sneezing and joking that he had the virus. I have not seen him for four to six days. There is also a rumor going around that the Deputy Warden has the virus. He has been out for two weeks.
15. Just last week they brought four new guys to our block. I asked them were you asked about the coronavirus, like whether you had contact with anyone. I also asked if they were tested. They said no.
16. I am worried about what will happen to me and others given my health issues if the virus comes to Clinton.
2

Case 1:20-cv-00480-JEJ Document 2-10 Filed 03/24/20 Page 4 of 4 I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Pratt by telephone on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union Of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 2-11 Filed 03/24/20 Page 1 of 4
Exhibit 11

Case 1:20-cv-00480-JEJ Document 2-11 Filed 03/24/20 Page 2 of 4
Declaration of Jean Herdy Christy Augustin
1. My name is Jean Herdy Christy Augustin and I am 34 years old. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that I and others face because of COVID-19
2. I have lived in the United States for 18 years and arrived here from Haiti when I was only 15 years old in the Summer of 2002. I have been detained in York County Prison since June 12, 2018.
3. I am seeking relief under the Convention Against Torture (CAT). My case is currently at the Third Circuit Court of Appeals.
4. I was diagnosed with diabetes within five months of being detained. I was not diabetic before I was detained and I believe my diabetes is directly related to the unhealthy food that we are given here. The food that I am given at York County Prison does not sit well with me and has caused digestive issues and affected my health in a number of ways.
5. I have high blood pressure which has been worsening in the last few days as a result of the stress and fear I have of contracting COVID-19.
6. I also suffer from many medical issues because I was shot five years ago in the groin area. As a result, I had to undergo bladder and intestine reconstruction surgery. The bullet fragments are still lodged in my body close to my spine. Because of this injury, I have limited mobility and also experience severe cramping and pain.
7. I also have nerve pain in my right hand.
8. I have a dangerously low hemoglobin level, it has gone as low as 8.5g/dL, and I am chronically anemic. I take iron pills and there have been times where I am unable to stand because of how lightheaded I feel.
9. In addition to all my physical health issues, I am diagnosed with PTSD, mild psychosis, anxiety, and major depressive order.
10. Since being detained I have experienced multiple medical emergencies and have been hospitalized four to five times. In December 2019 I also had an endoscopy and colonoscopy done to locate the source of internal bleeding that I had but the doctors were unable to figure it out. The doctors told me that the next step was a CAT scan but it has been three months and I have not had the scan done.
1

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11. It was only after I had to be hospitalized a few times that York County Prison realized how serious my medical issues were and allowed me to be taken to doctors outside of the facility.
12. There are medical requests that I made that York County Prison has taken several days to address. I filed grievances complaining about how long it takes for my medical requests to be addressed.
13. I receive medication from the clinic to treat various medical issues. I take medication for diabetes, blood pressure, nerve medication and several other medical issues. I take enough medications that I have lost track what they are for. Because of my several health conditions, I understand that I am at a high risk should I contract COVID-19.
14. I am very fearful that the lack of care at York County Prison will have dire consequences for me. There are no special precautions that are being taken by staff here. No one, not even medical staff wear gloves. One of the medical staff members told me that they do not have access to hand sanitizer. There is an attitude of carelessness amongst staff. I have overheard correctional officers say that they “hope that we get corona, so we can get it over with.” They are keeping everyone in the dark and not telling us about any risk of COVID-19 coming into the prison.
15. The prison staff are going home and coming to work every day so there is a great risk even if one of them is carrying COVID-19. I also work in admissions 7 days a week, where we have to process up to 15 people a day. This means that every day I have direct contact with detainees and inmates who have to be processed through admissions. Physical contact with these people is necessary since my job is to hand off clothes, sheets and blankets, as well as other items to new detainees and inmates.
16. In addition to people coming from everywhere, we are housed very close together. I am in block B4 and there are around 54 people in my block in one open area. There is just one wall separating the dining and sleeping areas. We sleep in bunkbeds that are about three feet apart—two people cannot stand in the area between the beds at the same time. Needless to say, I am not able to maintain the recommended six feet distance from the people around me.
17. During the three meal times a day, we are herded in one large group, all 54 of us towards the dining area. There, we sit on small tables of four, with not a lot of space between us. The tables are also close together, maybe three feet apart. It is hard to move around the tables. Our food is given to us on open trays.
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18. One of my friends in my block had the job of serving food to and cleaning up after someone who was being quarantined and separated from other inmates. Even though that block was being quarantined and that person was being separated, my friend had to interact with him and then come back to our block. I do not understand the point of quarantining someone and then having people from other blocks have contact with that person. This is not safe.
19. We also share hallways with all the blocks. So if we need to go to a medical office, counselor’s office, other social areas, we necessarily interact with people from other blocks as we’re passing them. Last week I was walking down the hallway and passed by people from the quarantined blocks who were all wearing masks.
20. We have two bathrooms, with six toilets and six showers in total. 54 people share these bathrooms. They are only cleaned 4 times a day which is just not enough since 54 of us are using these bathrooms. No amount of regular cleaning would prevent the spread of something like COVID-19 here.
21. They told us to wash our hands but there are so many people coming in and out that I know this is not enough. We don’t have hand sanitizers or any other kind of alcohol disinfectant.
22. There are so many health issues that I have that put me at a high risk if I am around sick individuals. If I am kept in York County Prison, I know that there is a high chance that I will get COVID-19. And because of my health issues the outcome might not be too good for me.

I, Muneeba S. Talukder, certify that I reviewed this declaration with Jean Herdy Christy Augustin over video on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.

Dated: March 23, 2020

/s/ Muneeba S. Talukder Muneeba S. Talukder AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 2-12 Filed 03/24/20 Page 1 of 3
Exhibit 12

Case 1:20-cv-00480-JEJ Document 2-12 Filed 03/24/20 Page 2 of 3
Declaration of Mayowa Abayomi Oyediran
1. My name is Mayowa Abayomi Oyediran and I am 40 years old. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that I and others face because of COVID-19.
2. I am originally from Nigeria but was living in France for five years. My wife and our three beautiful children are still in France. I miss them very much.
3. But I had to flee for my life. I was trying to get to Canada to seek asylum. I had a layover in the United States on November 7, 2019 and was detained at the airport. I have been detained since then. I just had my asylum hearing on March 10. I am waiting to hear back from the judge. I pray that I am granted protection.
4. I have had severe asthma since I was born. My asthma condition has been made much worse since being detained. York County Prison is cold, dirty, and crowded. These are all conditions that make asthma worse.
5. I have used an inhaler since as far as I can remember. I requested an inhaler but the prison has not provided me with one yet and it has been weeks. I told the medical unit here that I am having so much trouble breathing that I cannot sleep so instead of giving me an inhaler, they gave me sleeping pills. This is absolutely ridiculous. I often wake up at night wheezing because of my asthma. My wheezing is so loud that it wakes up all those sleeping around me.
6. I have made so many medical requests but they are all ignored. They do not make any effort and do not reply to my requests.
7. Before I left France my doctor there told me that I have a lung infection. I told the medical unit here about the infection and that I have chest pain and they did an x-ray scan on me two weeks ago but I have not heard back about the results. I need to be taking medication for this infection but nothing has been given to me here in the prison.
8. I also have a history of high blood pressure and high cholesterol.
9. I already have a breathing problem and am terrified of the possibility of contracting COVID-19 since I know it impacts your lungs and can make breathing even more difficult. Getting COVID-19 could be deathly for me.
1

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10. I am also afraid because I am surrounded by so many people at York County Prison. There are 60 people in my block with new people coming in every day. We are all packed together in one room, breathing the same air, using the same bathrooms, and eating right next to each other. Even though I try, it is impossible to avoid physical interaction.
11. Beds are crowded right next to each other. There are 60 people in one room, I am number 20 and I am right in the middle. I feel suffocated by the amount of people.
12. A week ago they did a temperature check in my block, MA, and six people had high temperatures. They moved everyone but the sick people out of MA block. Now I am in IC2 block and they have already moved some people out of this block because they were sick. It is so confusing and I am not sure how moving the sick people out will help-there are people who slept close to the sick people and they are still here. There are people getting sick every day.
13. They do not have COVID-19 tests here. Nobody has been tested even though people are sick.
14. I am so worried. I made a long journey to save my life but now I am stuck in a jail. I cannot sleep, I cannot breathe, and I feel like I am going to die. Nobody here can even get me an inhaler, how will they help save us from this virus. They can’t and they won’t.

I, Muneeba S. Talukder, certify that I reviewed this declaration with Mayowa Abayomi Oyediran over video on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.

Dated: March 23, 2020

/s/ Muneeba S. Talukder Muneeba S. Talukder AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 2-13 Filed 03/24/20 Page 1 of 3
Exhibit 13

Case 1:20-cv-00480-JEJ Document 2-13 Filed 03/24/20 Page 2 of 3

Case 1:20-cv-00480-JEJ Document 2-13 Filed 03/24/20 Page 3 of 3

Case 1:20-cv-00480-JEJ Document 2-14 Filed 03/24/20 Page 1 of 3
Exhibit 14

Case 1:20-cv-00480-JEJ Document 2-14 Filed 03/24/20 Page 2 of 3

Case 1:20-cv-00480-JEJ Document 2-14 Filed 03/24/20 Page 3 of 3

Case 1:20-cv-00480-JEJ Document 2-15 Filed 03/24/20 Page 1 of 3
Exhibit 15

Case 1:20-cv-00480-JEJ Document 2-15 Filed 03/24/20 Page 2 of 3
Declaration of Catalino Domingo Gomez Lopez
1. My name is Catalino Domingo Gomez Lopez. I am a 51-year-old man from Guatemala. My first language is Mam. My second language is Spanish. I am seeking immigration relief under the Convention against Torture (CAT). I have four children and I am married.
2. I have lived in United States since 2004. In Guatemala, I was a farmworker. In the United States, I have worked in landscaping—helping to plant trees, flowers, mow grass.
3. I have been detained by ICE since November 2018. I am at York County Prison in MD block. There are sixty guys in my dormitory.
4. I understand that I have a higher risk if I am exposed to COVID-19 because I am older.
5. My health has not been good since I’ve been detained. I have had the flu four times. This most recent time was bad. I was sick for a month. I had a fever and a bad cough. My cough got so bad I coughed some blood. My throat really hurt.
6. I also had an issue where my skin was really dry and my hair was falling out. They gave me a cream. I am not sure what it was but it really bothered me.
7. For medical appointments there is usually a waiting time. For example if I put in a request today, I would be seen in four to five days. It was the same when I had the flu. It was four days until I was called. My throat was so sore it was raw.
8. Our sleeping arrangement is bunk beds. I have the top bunk, which I don’t like because it is drafty and I feel like I can’t breathe as well. The beds are arranged in two long rows.
9. There is a divider wall that goes up about 11 or 12 concrete blocks. Behind it is our day room.
10. The showers are three on each side. There are two bathrooms in our block too. There are three sinks per bathroom.
11. Where we sit to eat has tables that seat four, close to one another, like almost touching.
12. I have not seen the staff take precautions like wearing masks or gloves.
13. I am worried about the coronavirus and what could happen to me.
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Case 1:20-cv-00480-JEJ Document 2-15 Filed 03/24/20 Page 3 of 3
I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Gomez Lopez by reading it to him in Spanish by video on March 23, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union Of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 2-16 Filed 03/24/20 Page 1 of 3
Exhibit 16

Case 1:20-cv-00480-JEJ Document 2-16 Filed 03/24/20 Page 2 of 3
DECLARATION OF DEXTER ANTHONY HILLOCKS
I, Dexter Anthony Hillocks, hereby declare:
1. My name is Dexter Anthony Hillocks, and I am from Trinidad & Tobago. I am 54 years old. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that I and others face because of COVID-19.
Detention at the Pike County Correctional Facility
2. I arrived in the United States in 2000 from Trinidad & Tobago. I am a legal permanent resident. I have been detained at the Pike County Correctional Facility since 2015.
3. On December 12, 2016, the Immigration Court issued an order of removal based on my 2015 Pennsylvania state court conviction for criminal use of a communication facility under 18 Pa.C.S. § 7512. On June 7, 2017, the Board of Immigration Appeals affirmed that order of removal. However, on August 12, 2019, the U.S. Court of Appeals reversed and vacated the order of removal. See Hillocks v. Attorney Gen. United States, 934 F.3d 332 (3d Cir. 2019).
4. Despite the Third Circuit’s reversal, I have not yet been released from the Pike County Correctional Facility. On September 16, 2019, the Immigration Court ordered that I be released from custody under a bond of $18,000, which I have been unable to pay. A motion to terminate my immigration proceedings and for full release from custody is currently pending in the Board of Immigration Appeals, where my “A number” is 047365-390.
Medical Issues
5. I have suffered from diabetes since 2004. As a result, staff provide me with insulin four times per day. In addition, for years, I have taken daily medication for high blood pressure and cholesterol.
6. Approximately seven months ago, a nurse at the Pike County Correctional Facility informed me that I have leukemia. However, I have been unable to learn the full extent of this diagnosis.
7. Approximately three months ago, I was diagnosed with anemia.
8. For all of these medical conditions, staff provide me with multiple pills to take on a daily basis.
9. Because of my medical conditions, I understand that I am at a high risk should I contract COVID-19.

Case 1:20-cv-00480-JEJ Document 2-16 Filed 03/24/20 Page 3 of 3

Detention Facility Conditions

10. I am very concerned about my healthcare at the Pike County Correctional Facility, because there are not sufficient precautions in place to protect us from sick guards or other sick detainees.

11. At the Pike County Correctional Facility, there are around 50 people in the block in which I am detained. I am exposed to many different people all the time. I am unable to maintain the recommended separation of six feet apart from other people at the facility.

I, M. Patrick Yingling of Reed Smith LLP, attorney for Dexter Anthony Hillocks in his immigration proceedings, certify that I reviewed the foregoing with Mr. Hillocks via phone. Mr. Hillocks affirmed that the foregoing is true and correct.

Dated: March 23, 2020

/s/ M. Patrick Yingling
M. Patrick Yingling REED SMITH LLP 10 S. Wacker Dr., 40th Fl. Chicago, IL 60606 Tel: (312) 207-2834 mpyingling@reedsmith.com

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 1 of 29
Exhibit 17

DocuSign Envelope ID: FFEA0937-3A53-428C-A50E-5A16FF632B68
Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 2 of 29
DECLARATION OF ANDREW LORENZEN-STRAIT
I, Andrew Lorenzen-Strait, hereby declare:
1. I am currently the Executive Director for Health and Wellness at Lutheran Social Services of the National Capital Area where I oversee migrant support services, including programming in behavioral health. Prior to that, from May 2019 to January 2020, I served as the Director of Children and Family Services at Lutheran Immigration and Refugee Services.
2. From 2008 to May 2019, I served in various roles at U.S. Immigration and Customs Enforcement (“ICE”). Most recently, I was the Deputy Assistant Director for Custody Programs in ICE, Office of Enforcement and Removal Operations (“ERO”). I served in this capacity for over six years, from April 2013 to May 2019, under both Democratic and Republican White House administrations. As Deputy Assistant Director, I oversaw health and welfare programs and services in immigration detention, including innovative programs to serve vulnerable populations. Among my relevant responsibilities included overseeing field level enforcement decisions in cases involving parents and primary caretakers, and monitoring compliance with ERO processes and standards. I also served in other capacities within ICE for over five years prior to that leadership position. Attached as Exhibit A is a copy of my curriculum vitae.
3. I submit this declaration to explain how ICE has exercised and still exercises discretion for purposes of releasing both individuals with serious medical conditions and individuals who are vulnerable to medical harm. Exercising prosecutorial discretion over detention was not only common, it was and continues to be an integral aspect of ICE’s enforcement practices.
4. During my time at ICE, the agency’s policy and practice was to limit the detention of noncitizens with special vulnerabilities.1 This group includes individuals who are known to be suffering from serious physical or mental illness, who have disabilities, who are
1 See, e.g., U.S. Immigration and Customs Enforcement, “Detention Reform,” (last updated July 24, 2018), https://www.ice.gov/detention-reform#tab1 (referencing use of risk classification assessment tools that “require[] ICE officers to determine whether there is any special vulnerability that may impact custody and classification determinations”); ICE Enforcement and Removal Operations, “Directive 11071.1: Assessment and Accommodations for Detainees with Disabilities” (Dec. 15, 2016), at 9 (providing for release as an option for detainees with disabilities); Doris Meissner, “Exercising Prosecutorial Discretion,” Immigration and Naturalization Services (Nov. 17, 2000), at 11 (citing “aliens with a serious health concern” as a trigger for the favorable exercise of discretion); see also Franco-Gonzalez v. Holder, 767 F. Supp. 2d 1034, 1061 (C.D. Cal. 2010) (providing for release of individuals with severe mental illnesses unless government could show that ongoing detention is justified).

DocuSign Envelope ID: FFEA0937-3A53-428C-A50E-5A16FF632B68
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elderly, pregnant, or nursing, who demonstrate that they are primary caretakers, who are LGBTI, or whose detention was not in the public interest.2
5. ICE exercises its release authority frequently for detainees with serious medical conditions. For instance, pregnant women never give birth in ICE custody because it is common for ICE to release them beforehand.
6. When I was at ICE, some of the medical conditions that constitute serious physical illness included any terminal illness, any condition that required imminent care to prevent deterioration, and any condition that precluded the individual from being housed, such as cancer requiring chemotherapy or leukemia.
7. In addition, under ICE policies, individuals who did not yet have a serious physical illness, but were vulnerable to medical harm were considered for release. When deciding whether to release medically-vulnerable detainees from custody, ICE’s determinations considered whether they have any physical or mental condition would make them more susceptible to medical harm while in ICE custody. This could include individuals who were very old, toward the end of their life.
8. Under this rubric, ICE would have considered individuals at high risk of suffering complications and/or death if they were to contract a highly infectious and incurable disease such as COVID-19 to be detainees with special vulnerabilities, eligible for release from detention. When confronted with an infection disease, ICE would have consulted guidelines from the Center for Disease Control and other medical experts to identify individuals who are at high risk and should be considered for release.
9. Upon learning that a detainee had a special vulnerability, ICE was required to monitor the detainee’s case and consider options as soon as practicable, including transfer to another detention facility with appropriate medical capabilities, or to an off-site treatment facility, or release where appropriate medical care was not available in custody.
10. ICE’s policy and practice of releasing individuals with special vulnerabilities from immigration detention was authorized under a range of statutory and regulatory provisions, including INA §§ 212(d)(5), 235(b), 236, 241, and 8 C.F.R. §§ 1.1(q), 212.5, 235.3, 236.2(b).
11. Even individuals held under mandatory detention, pursuant to the Immigration and Nationality Act (“INA”) § 236(c), were released pursuant to ICE’s guidelines and policies, particularly where the nature of their illness could impose substantial health care
2 Jeh Charles Johnson, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” U.S. Department of Homeland Security (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pd f, at 5.

DocuSign Envelope ID: FFEA0937-3A53-428C-A50E-5A16FF632B68
Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 4 of 29
costs or the humanitarian equities mitigating against detention were particularly compelling.
12. ICE’s policy and practice regarding individuals with special vulnerabilities was reflected in a memorandum from Jeh C. Johnson, Secretary of the Department of Homeland Security, in 2014 (“Johnson memo”).3 ICE has also issued other guidance for exercising prosecutorial discretion in detention decisions, including a memorandum issued by John P. Torres, Director of ICE, in 2006 regarding ICE’s exercise of discretion in cases of extreme or severe medical concern (“Torres memo”),4 and a memorandum from John Morton, Director of ICE, in 2011 (“Morton memo”) regarding the exercise of prosecutorial discretion in ICE’s enforcement priorities, including detention.5 The Johnson memo is attached as Exhibit B, the Torres memo is attached as Exhibit C, and the Morton memo is attached as Exhibit D.
13. Although the Johnson, Torres and Morton memoranda have been rescinded by the current administration, the statutory and regulatory bases for the use of prosecutorial discretion in ICE’s custodial determinations remains unchanged.
14. In fact, as stated above, ICE’s enforcement priorities have always been shaped by the necessary use of prosecutorial discretion with respect to immigration detention.
15. Moreover, ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A government-contracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings.6
3 See id. 4 John P. Torres, “Discretion in Cases of Extreme or Severe Medical Concern,” U.S. Immigration & Customs Enforcement (Dec. 11, 2006), available at https://www.ice.gov/doclib/foia/dro_policy_memos/discretionincasesofextremeorseveremedicalc oncerndec112006.pdf. 5 John Morton, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” U.S. Immigration and Customs Enforcement (June 17, 2011), available at https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. 6 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 201.4), available at https://www.gao.gov/assets/670/666911.pdf.

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16. The COVID-19 virus represents an unprecedented risk to detainee health and safety that should prompt officials to examine the custodial status of all those most at risk. Such an examination would result in their immediate release.
I, Andrew Lorenzen-Strait, swear under the penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing declaration is true and correct to the best of my knowledge and belief. Executed on this 23rd day in March, 2020 at Davidsonville, Maryland.
_________________________ Andrew Lorenzen-Strait

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EXHIBIT A

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ANDREW R. LORENZEN-STRAIT
3491 Constellation Drive • Davidsonville, MD 21035 • (202) 431-4761 • alorenzenstrait@gmail.com

SUMMARY OF SKILLS A dedicated advocate who is passionate about transforming communities with a mission-driven organization who seeks to better the lives of marginalized populations. An advanced degree holder, Juris Doctorate, specialized in child advocacy. Currently responsible for the strategic management and leadership of the Children and Family Services department within the Lutheran Immigration and Refugee Service. Formerly the Deputy Assistant Director for U.S. Immigration and Customs Enforcement, entrusted to deliver health and welfare programs and services for detained migrants, including families and children, in Federal immigration detention. Dynamic and accomplished individual with over a decade of professional experience in leading teams to create, coordinate, and implement innovative custody policies and programs that promote the safety and welfare of families, and other vulnerable populations. Demonstrated experience leading and managing large and diverse organization focused on high priority initiatives for improving organizational outcomes that have a direct interest in affecting educational programs for those in care and custody of the U.S. government. Principled and effective communicator with the ability to engage, motivate, and build cooperative relationships between government actors and a wide array of stakeholders. A proven and resilient leader with strong analytical to absorb and integrate large amounts of information and quickly identify solutions and remedies to overcome obstacles. A proud volunteer Maryland Court-Appointed Special Advocate for youth in the state’s dependency system.

KEY PROFESSIONAL EXPERIENCE

Lutheran Immigration and Refugee Service (LIRS)

Director – Children and Family Services

June 2019 to Present

▪ Managed the day-to-day operations and provided strategic leadership to the Children and Family Services LIRS programs

department.

▪ Responsible for the for the implementation and oversight of programs with over 100 partners in 39 states across the country

who provide child welfare services to refugee and migrant children who are unaccompanied or separated from family.

▪ Create and manage a multi-million-dollar budget for the department.

▪ Responsible for LIRS’ for transitional and long-term foster care and family reunification programs and services, inclusive of the

Unaccompanied Refugee Minor or URM program.

▪ Hire, train, and develop staff to fulfill the functions of the department including evaluation, training, technical assistance,

program management, and coordination.

▪ Devise and oversee strategic and performance-based work plans for team members. Mentor and manage performance as

necessary.

▪ Secure and maintain a diverse array of funding for the department by assisting with identification of funding sources, writing

grants, and reporting.

▪ Service as the primary LIRS subject matter expert in Children and Family Services and represent LIRS internally and

externally.

U.S. Immigration and Customs Enforcement (ICE), Office of Enforcement and Removal Operations (ERO)

Deputy Assistant Director for Custody Programs (GS-15)

April 2013 to May 2019

▪ Direct operational oversight over innovated programs in areas that promote the health, safety, and welfare of vulnerable

populations, including youth and families. These operational programs include, but are not limited to; mental health care;

parental interests; religious accommodation; sexual assault and abuse prevention and intervention; lesbian, gay, bi-sexual,

transgender, and intersex (LGBTI) care; language access; and family case management. Formal coordinator of care between

detained parents and children in the care of Health and Human Services.

▪ Responsible for supporting and strengthening ERO’s immigration custody operations by providing objective policy and

program development, analysis, and monitoring that seek to improve detention and effectively integrate the agency’s detention

reform goals.

▪ Created and managed a new operational division within ICE ERO, the Custody Programs Division. The Custody Programs

Division (CPD) creates and coordinates innovative policies and programs that promote the safety and welfare of those

encountering the agency's immigration enforcement activities while ensuring effective adherence to the ERO mission.

Responsible for the creation and management of CPD’s two organizational units, both of which seek to continuously improve

detention and effectively integrate ICE’s detention reform goals.

▪ Develop and implement strategic systems and collect, analyze, and evaluate internal and external information to promote and

improve compliance with ERO practices, processes, and standards.

▪ Effective management of over 100 individuals (federal employees, contractors, detailers, and interns). Lead the administrative

and human resource management functions, to include budget formulation and execution functions, as well as ensuring staff

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compliance with ERO’s training requirements. Establish guidelines and performance expectations for employees, which are communicated through the formal employee performance management system, including performance work plans. Meet weekly with senior division leaders to assist them in achieving division goals and promote a workforce that values diversity, respect and professional development.
• Serve as the National ICE Parental Rights Coordinator. Oversee and evaluate implementation of immigration enforcement policies and practices as they apply to parents; particularly parents involved or at risk of becoming involved in the child welfare system. Responsible for the effective oversight of field level enforcement decisions and providing direction to ERO’s 24 field offices on cases involving parents and primary caretakers.
• Maintain oversight of the use of segregation in ICE detention facilities (numbering over 250) to ensure compliance with law and policy (immigration detention standards).
▪ Responsible for the ERO prevention of sexual assault program in all ICE detention facilities. Promote adherence to the U.S. Department of Homeland Security (DHS) regulation titled, “Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities,” 79 Fed. Reg. 13100 (Mar. 7, 2014), i.e. DHS Prison Rape Elimination Act (PREA) Standards.
▪ Manage the agency’s Detention Reporting and Information Line (DRIL), a toll-free service that allows agency stakeholders to communicate directly with ERO to answer questions and resolve concerns.
▪ Serve as the ERO subject matter expert and Operations Coordinator for the care of LGBTI detainees. ▪ Principal liaison with civil society stakeholders, to include faith-based organizations, non-profit organizations, and quasi-
governmental organizations.

Key Achievements

▪ Initiated and led a multi-year, multi-million-dollar new alternative to detention program for over 800 immigrant families, titled

the ICE ERO Family Case Management Program (FCMP), which tests whether providing access to holistic community-based

services for eligible families and juveniles released from ICE custody can serve to mitigate flight risk and promote compliance

with immigration obligations. ▪ Pioneered an innovative working group that reviewed existing policies and best practices for the care and treatment of

transgender individuals in confinement. Responsible for the drafting and implementation of the June 2015 ERO Transgender

Care Memorandum. The Transgender Care Memorandum contains guidance in multiple areas of the ICE detention lifecycle to

better serve transgender individuals. Serve as ERO’s LGBTI Coordinator and lead a team, to include 24 field LGBTI liaisons,

which effectively monitors the arrest, processing, and detention of transgender individuals in ICE custody. ▪ Led the agency in developing and issuing the Use of Segregation for ICE Detainees directive. This directive established new policy

for field tracking and headquarters review of instances where ERO field office staff assigned an ICE detainee into segregated

housing. Responsible for ensuring consistent and appropriate use of segregation, particularly for detainees with special

vulnerabilities. In support of this endeavor, led ICE in the creation a SharePoint-based system, the Segregation Review

Management System (SRMS), to input, track, review, comment on, and analyze segregation cases. The creation of the system

resulted in significant quality improvements in work procedures that improved ERO operations and better ensures the safety,

health, and welfare of detainees and ICE personnel. ▪ Created an ERO dedicated Sexual Abuse and Assault Prevention and Intervention (SAAPI) program from the ground up that

demonstrates exceptionally outstanding contributions and dedication to the ICE/ERO mission. Responsible for issuing and

providing effective oversight of Sexual Abuse and Assault Prevention and Intervention, an ICE directive. Led effective

implementation of the directive by ensuring training and technical assistance to ERO officers in all 24 field offices and key

facility first responders to better prevent, respond and report sexual abuse and assault. Led a team to create a SAAPI case

management system to track the life cycle of all sexual abuse and assault allegations for the agency. Due to the comprehensive

systems development and field training, ERO has seen a significant increase in the reporting of sexual abuse and assault

allegations. ▪ Responsible for the expansion of the ERO legal access and educational initiatives. Led an agency-wide effort to facilitate

meaningful access to legal and educational resources and representation for individuals for detainees held in ERO custody.

This included increasing the availability of, and access to, self-help legal resources, including user-friendly enhancements to an

electronic legal research system currently available to individuals detained in ERO custody. Responsible for facilitating

expanded availability of, and access to, Know Your Rights presentations and various legal aid programs conducted through the

United States Department of Justice, Executive Office for Immigration Review (EOIR), Office of Legal Access Programs

(OLAP). Enhanced educational opportunities for adults and juveniles detained in Family Residential Centers. ▪ Created and manage the ICE national religious access program that ensures religious practice accommodations are provided to

all those held in adult immigration facilities. Initiated national tracking of all religious accommodation complaints and inquiries

from the Detention Reporting and Information Hotline (DRIL), Joint Intake Center (JIC), Office for Civil Rights and Civil

Liberties (CRCL), and various external stakeholders. This tracking and subsequent analysis has allowed ICE to see trends

across facilities, identify specific issues, and develop strategic responses. Developed an overview training deck on religious

practice accommodation, which combines knowledge from the national survey, national standards, site visit assessments,

current law, and trends in complaints. This training, which is continually updated, has been delivered to ICE oversight entities

responsible for monitoring facilities. Pro-actively conducted outreach to and established relationships with several faith-based

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organizations and subject matter experts in religious accommodation in prisons. Relationships with these key stakeholders enables ERO to quickly request and receive assistance, gather information pertaining specific religious obligations, and locate faith leaders who are able to assist with religious programming.

Public Advocate (GS-15) ~ ERO

February 2012 to April 2013

▪ Served as the agency’s first and only Public Advocate.

▪ Serve as a dedicated ICE point of contact for individuals, including those in immigration proceedings, NGOs, and other

community and advocacy groups, who have concerns, questions, recommendations or important issues they would like to

raise.

▪ Managed the Office of the Public Advocate which included Federal employees, contractors, and detailers. Performed the

administrative and human resource management functions for the Office of the Public Advocate, to include: budget

formulation and execution; establishing and maintaining employee work performance plans; employee time and attendance;

and employee training.

▪ Assisted individuals and community stakeholders in resolving complaints and concerns with agency policies and operations,

particularly those related to the use of ICE enforcement involving U.S. citizens.

▪ Proposed and facilitated changes and recommendations to fix community-identified problems and concerns.

▪ Alerted agency leadership to community stakeholder concerns with current or proposed agency policies and/or operations.

▪ Maintained a collaborative and transparent dialogue with community stakeholders on the agency's mission and core values.

Key Achievements
• Conducted a robust outreach campaign to inform stakeholders on ERO’s values and mission that included hosting or coordinating over 100 engagement events bringing together agency stakeholders, field leadership and headquarters personnel to address community concerns, including: o 14 local stakeholder roundtables in cities throughout the country. o 5 White House Hispanic Community Action Summits. o 8 national NGO working/advisory group meetings. o 70 field outreach events.
• Responsible for the creation of ICE’s DRIL telephone line (i.e. helpline). This is a toll-free service that provides a direct channel for agency stakeholders to communicate directly with ERO to answer questions and resolve concerns. Since it launched in September 2012, the DRIL has resolved more than 2,000 case assistance calls monthly on average.
• Established and continue to manage ERO’s Custody Assistance and Inquiry Resolution System (ERO-CAIRS). ERO-CAIRS and the file sharing portions of this site are used to track, store, and manage the data and processes associated with over 600 calls received daily by ICE DRIL.
• Developed the first-ever comprehensive Outreach Guide for ERO’s 24 dedicated outreach liaisons. It assists them in establishing relationships with local stakeholders, gathering information about community concerns and perspectives, and addressing those concerns in a more uniform and efficient manner.
• Developed a centralized database of NGOs, faith-based organizations and advocacy groups organized by issue areas and by area of responsibility. This database assists ICE/ERO in establishing a list of external stakeholders for each field office, and eases the burden of organizing public outreach and engagement events.

Senior Advisor for Custody (GS-15) ~ ERO

September 2011 to February 2012

▪ Advised ICE/ERO senior leaders on detention: standards, compliance/inspections tools, and detainee classification

procedures used in ICE detention facilities.

▪ Developed, coordinated, analyzed, and finalized detention operational policy directives and other policy-related documents in

accordance with formal ICE processes and structures.

▪ Maintained an active and comprehensive understanding of ICE detention policy, procedures, rules and regulations.

▪ Possessed an advanced knowledge of civil immigration detention standards and compliance measures in order to effectively

communicate to both ICE senior leaders and external stakeholders on detention facility operations and management.

▪ Served as a lead member on ICE’s internal civil detention reform working groups.

▪ Served as a lead technical advisor on policies and procedures meant to improve the agency’s detention compliance

mechanisms.

▪ Provided ICE senior leadership with weekly reports and briefings on any tensions, issues, and/or crises involving the

implementation of ICE initiatives with NGO and community stakeholders.

Key Achievements ▪ Partnered with a group of key senior ICE leaders to design a new automated risk-based custody intake process to ensure
consistent nationwide decision making about who is detained, released, or granted bond, taking into account public safety and risk of flight factors. Ensured that this intake process took into consideration special vulnerabilities to include: disability,

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advanced age, pregnancy, nursing, sole caretaking responsibilities, mental health issues, and whether the individual is a victim of torture, persecution, abuse or trafficking. ▪ Led the agency in developing a new set of detention standard that substantially improved conditions of confinement and ensured enhanced medical care, religious programming, recreation and visitation for over 400,000 individuals detained annually (i.e., Performance-Based National Standards of 2011). ▪ Launched an Online Detainee Locator System, translated into nine languages, which allows families, counsel and friends to locate detainees.

Chief Public Engagement Officer (GS-14) ~ Office of State, Local, and Tribal Coordination

July 2010 to September 2011

▪ Managed the pubic engagement portfolio for the agency, as the team lead of 4 staff members.

▪ Maintained and enhanced senior-level partnerships with the division’s stakeholder portfolio, which includes: non-governmental

organizations (NGOs); quasi-governmental entities (e.g. United Nations High Commissioner for Refugees (UNHCR) and the

Organization of American States (OAS)); faith-based organizations, members of academia, law practitioners and associations;

the private sector; and the public.

▪ Promoted the division’s engagement goals internally and externally in order to ensure: (1) greater operational efficiency; (2)

improved credibility with the public; (3) early warning of potential issues and community concerns; and (4) better

understanding of the community’s needs.

▪ Coordinated the agency’s engagement activities on immigration detention policies, procedures, rules and regulations.

▪ Attended and spoke at internal and external stakeholder trainings, national conferences, and seminars.

▪ Led special events or roundtable meetings on ICE priority issues.

▪ Managed the operation of field outreach activities (i.e., 287(g) steering committees, and regional community relations officers).

Awards and Accolades: Director’s Meritouris Service Award ~ June 2011 (Civil Detention Reform)

Exceptional Performance Award ~ May 2011

Special Assistant (GS-14) ~ Office of Policy

May 2009 to July 2010

▪ Served as the lead Policy Analyst/Advisor on policy issues pertaining to immigration enforcement.

▪ Maintained an active and comprehensive understanding of ICE policy, procedures, rules and regulations so as to communicate

intelligently and informatively about issues of concerns to stakeholders.

▪ Advised and helped author ICE’s Immigration Detention Standards, to include the National Detention Standards (NDS),

Performance-Based National Detention Standards of 2008 (PBNDS 2008), and Family Residential Standards.

▪ Served as a lead member on one of ICE’s civil detention reform working group and helped author the PBNDS 2010.

▪ Advised and assisted the ICE Policy Director on the office’s budget development, analysis and execution, to include submitting

cost estimates for new positions and authoring budget proposals for future office projects.

▪ Provided ICE senior leadership with weekly reports and briefings on any tensions, issues, and/or crises involving the

implementation of ICE initiatives with NGO and community stakeholders.

▪ Represented the agency at intra-department and inter-agency community outreach meetings.

▪ Directed or conducted mediation and conciliation sessions with disputing parties, applying dispute resolution techniques when

addressing civic, labor, education, religious, ethnic, racial, and other groups, businesses, or government entities.

Awards and Accolades: Assistant Secretary’s International Achievement Award ~ June 2010 (Authored agency’s Revised Parole

Policy Directive – issued December 2009)

Assistant Secretary’s ICE Core Value Award (ICE Policy Manual) ~ June 2010

Exceptional Performance Award ~ October 2008

Detention and Removal Policy Advisor (GS-14) ~ Office of Policy

March 2008 to May 2009

▪ Served as the team lead Policy Analyst/Advisor on policy issues pertaining to immigration detention and removal laws,

policies, programs and procedures.

▪ Advised the ICE Policy Director on detention standards, detention assessment/inspections tools, and detainee classification

procedures in ICE detention facilities.

▪ Developed, coordinated, analyzed and finalized operational policy directives and other policy-related documents in accordance

with formal ICE processes and structures.

▪ Evaluated ICE programs and procedures to improve enforcement and detention program effectiveness and efficiency.

▪ Strengthened ICE Office of Policy’s Immigration Division by attaining and displaying comprehensive knowledge of: (1) the

theories, practices and principles of U.S. Immigration Policy; and (2) the procedures, programs and functions of the agency and

other DHS components especially as they impact detention and removal operations.

▪ Served as the Acting Outreach Coordinator from May 2008 to May 2009.

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VOLUNTEER EXPERIENCE County of Prince George’s Maryland
Court-Appointed Special Advocate or CASA (Pro Bono)
▪ Serve as a CASA for complex cases, to include medically fragile children and LGBTQ children.

Oct. 2017 to Present

State of Maryland
Family Law Attorney (Pro Bono) ~ Community Legal Services of Prince George’s County Inc. June 2005 to June 2008
▪ Provided legal guidance and representation to clients in the areas of: adoption, family law, tort defense, and contracts. ▪ Drafted and negotiated complex settlement agreements for quick and equitable disposition of cases. ▪ Independently drafted complex legal memoranda, briefs, and court motions.
▪ Counseled pro se litigants on their legal rights and obligations and suggest appropriate course of action.
Awards and Accolades: 2007 Maryland Attorney of the Year for Pro Bono Service ~ June 2007

PREVIOUS PROFESSIONAL EXPERIENCE

United States Secret Service (USSS)

Senior Policy Advisor and Project Leader ~ Management and Organization Division

Oct. 2006 to March 2008

▪ Served as Project Leader on Director’s Action Group initiated program evaluations, recent evaluations to include the Secret

Service Employment Program and the Office Inspection Program.

▪ Evaluated the policies, objectives and strategies of existing programs to improve program: 1) effectiveness (to include cost-

effectiveness); 2) efficiency; 3) applicability to the policies contained within the agency’s strategic plan; and 4) return on agency

investment.

▪ Developed the U.S. Secret Service Strategic Plan (FY 08’ – FY 12’) and served as technical advisor on the agency’s

improvement of the office inspection and compliance process.

Awards and Accolades: Exceptional Performance Award ~ October 2007 “On the Spot” Performance Award ~ March 2007

PRESIDENTIAL MANAGEMENT FELLOWSHIP

Drug Enforcement Administration (DEA)

Policy Analyst ~ DEA - Office of the Chief of International Programs

Sept. 2005 to Oct. 2006

▪ Managed and conducted internal evaluations to ensure integrity and effectiveness of agency international narcotics policies.

▪ Reviewed and reported on pending drug legislation affecting international operations.

▪ Performed comprehensive legal and policy analysis on counter-narcotics policies and operations worldwide, to include the

tracking and review of germane international legal agreements.

▪ Developed and utilized complex methodologies to measure effectiveness of international enforcement programs.

▪ Assisted in the planning and development of the agency’s foreign operations budget totaling more than $400 million.

▪ Formulated and revised personnel, infrastructure, and fiscal policy affecting DEA employees in 60 countries.

Presidential Management Fellow (PMF) ~ Office of International Programs

Sept. 2004 to Sept. 2005

▪ Served as policy advisor for DEA’s counter-narcotics initiative within Afghanistan.

▪ Reviewed and reported on foreign program activities in AOR for conformance with federal drug policy.

▪ Developed and authored regional drug strategy reports to conform to the National Drug Control Strategy.

▪ Examined Mutual Legal Assistance Treaties, Extradition Treaties, and germane international conventions for AOR.

▪ Authored briefings and position papers on AOR drug threat situation for incoming U.S. Ambassadors.

Congressional Liaison (PMF) ~ Office of Congressional Affairs

Sept. 2003 to Feb. 2004

▪ Prepared testimony and written documents for Congressional hearing and other legislative matters with potential impact on the

strategic priorities of DEA.

▪ Reviewed Freedom of Information Act requests and authored appropriate agency response.

▪ Represented agency priorities to members of Congress and staff in furtherance of DEA’s objectives and mission.

Awards and Accolades: Exceptional Performance Awards ~ December 2005 and September 2006

United States Senate

Health and Social Policy Legislative Fellow/PMF ~ Senator Debbie Stabenow (D-MI)

Feb. 2004 to Aug. 2004

▪ Drafted and monitored legislation, prepared briefings, and met with constituent/interest group representatives relating to

various health & social policy areas, i.e.: education, TANF, Medicare/Medicaid, and prescription drug reform. Advised the

Senator on Special Committee on Aging, areas included: Social Security reform, drug discount cards, issues concerning long

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term care health insurance, and prescription drug abuse. Coordinated FY 2005 Health, Education and Labor Appropriation requests.

ADDITIONAL EXPERIENCE
Certified Law Clerk ~ United States Attorney’s Office Judicial Clerk ~ Hon. Justice Bedsworth, California Court of Appeal Law Clerk ~ Los Angeles District Attorney - Family Violence Division

May 2002 to July 2002 Jan. 2002 to April 2002 May 2001 to Aug. 2001

PUBLIC SERVICE
Volunteer Park Ranger ~ National Park Service, Arlington House, Robert E. Lee Memorial Child Mentor ~ Northern Virginia Aids Ministry Volunteer Coordinator ~ National World War II Memorial White House Intern ~ Office of the First Lady and the White House Millennium Council

Oct. 2005 to Oct. 2012 Oct. 2003 to Jan. 2005 Oct. 2003 to May 2004 Aug. 1998 to Jan. 1999

EDUCATION, TRAINING & CERTIFICATIONS
Juris Doctorate with Emphasis in Child Advocacy ~ Whittier Law School, Top Tier Graduate ▪ Child Advocacy Fellow ~ Center for Children’s Rights and Dean’s List recipient 2001-2003 Bachelor of Arts ~ University of California at Irvine, Cum Laude Evaluation Training and Cost-Benefit and Cost-Effectiveness Analysis ~ The Evaluator’s Institute Certificate, Legislative Studies ~ Georgetown University, Government Affairs Institute Certificate, Juvenile and Family Law ~ Whittier Law School Certificate, National Security Leadership and Decision-Making ~ U.S. National Defense University

May 2003
June 2000 July 2007 May 2004 May 2003 September 2008

PROFESSIONAL LICENSES & MEMBERSHIPS
Licensed, Maryland State Bar Member, Maryland State Bar Association and American Bar Association Member, United States Supreme Court Bar

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EXHIBIT B

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Secretary U.S. Department of Homeland Security Washington, DC 20528
Homeland Security

November 20, 2014

MEMORANDUM FOR: Thomas S.Winkowski Acting Director U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection

Leon Rodriguez Director U.S. Citizenship and Immigration Services

Alan D. Bersin Acting Assistant Secretary for Policy

FROM:

Jeh Charles Johnson Secretary

SUBJECT:

Policies for the Apprehension, Deten tion and Removal of Undocumented Immigrants

This memorandum reflects new policies for the apprehension, detention, and removal of aliens in this country. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). This memorandum should inform enforcement and removal activity, detention decisions, budget requests and execution, and strategic planning.

In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security. The intent of this new policy is to provide clearer and more effective guidance in the pursu it of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparenc y in the annual reporting of our removal statistics, to include data that tracks the priorities outlined below.

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The Department of Homeland Security (DHS) and its immigration componentsCBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion,DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel , detention space, and removal assets accordingly.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question , and arrest; whom to detain or release; whether to settle, dismiss, appeal , or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process-from the earliest investigative stage to enforcing final orders of removal-subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.
Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcem ent: Priorities for the Apprehension , Detention , and Removal of Aliens, March 2, 20 11; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension , Detention and Removal of Aliens , June 17, 20 11; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009.
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A. Civil Immigration Enforcement Priorities
The following shall constitute the Department's civil immigration enforcement priorities:
Priority 1 (threats to national security, border security, and public safety)
Aliens described in this priority represent the highest priority to which enforcement resources should be directed:
(a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
(b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
(c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
(d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and
(e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.
The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.
Priority 2 (misdemeanants and new immigration violators)
Aliens described in this priority , who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:
(a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element
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was the alien's immigration status, provided the offenses arise out of three separate incidents;
(b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence ;1 sexual abuse or exploitation; burglary ; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
(c) aliens apprehended anywhere in the United States after unlawfu lly entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
(d) aliens who, in thejudgmen t of an ICE Field Office Director , USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
These aliens should be removed unless they qualify for asylum or anoth er form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.
Priority 3 (other immigration violations)
Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 20 14. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehen sion and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
1 ln eval uating whether the offense is a significant misdemeanor involving ..domestic violence," careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17,201 1. 2 For present purposes,"final order"is defined as it is in 8 C.F.R. § 124l.1.
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B. Apprehension, Deten tion , and Removal of Other Aliens Unlawfully in the United States
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein , prov ided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
C. Detention
As a general rule, DHS detention resources should be used to support the enforcement pr iorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resource s on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly , pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE F ield Office Director. If an alien falls within the above categories and is subject to mand atory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.
D. Exercising Prosecutorial Discretion
Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority l must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unl ess, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operation s, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority . Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the
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integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
In making such judgment s, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanit arian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
E. Implementation
The revised guidance shall be effective on January 5, 201 5. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum.
F. Data
By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended,removed, returned, or otherwise repatriat ed by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually.
G. No Private Right Statement
These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or ben efit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
6

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 20 of 29
EXHIBIT C

•

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 21 of 29

. . :, ~'::.' '.':' ", :

:'::'

'·.' •• 0'. \ \:

U.S. Immigration
.:l.nd CLlS{CJm~, Fnforcenlt~n!
DEC 11 2006

MEMORANDUM FOR: FROM: SUBJECT:

Assistant Directors Deputy Assistant Directors Field Office Directors
"JO.hfiP~ Torr". ".~....e....s. ". I.... ..
Dll'ector ... " . , .. ~
p,-,ioqin_ Ql ~'- Qr~""'M..&ar~

This mt}morandum serves to review the importance of exercising prosecutorial discretion when making ciistody determihations for aliens (adults and/or juveniles) transferring from hospitals and social services or law enforcement agencies who have severe medical conditions. The Office of Detention and Removal Operation's (DRO) commitment to maintaining an end to the "catcb andreleaSe" of illegal aliens does not abrogate the responsibility of DRO staff to use judicious discretion in identifying and responding to meritorious health related cases in which
detention may not be in the best interest of U.S. lnunigration and Customs Enforcement (ICE).

Aliens Arriving Into DRO Custody

The process for making discretionary decisions is outlined in the attached memorandum of November 7, 2000, entitled "Exercising Prosecutorial Discretion." Field officers are oot only authorized by law to exercise discretion withih the authority of the agency, but are expected to do so in a judicious manner at all stages of the enforcement process.

In situations where s.laff must respond to a pickup request or detainer placed against an adult or
juvenile alien with :asevere medical or psychiatric condition, the Field Office Director (fOD) should weigh the appropriateness of taking that person into federal custody absent a mandatory detention requirement. exceptional concern such as national security, or articulable aahger to the communit.y thatcannpt be addressed by the referring agency. A favorable exercise of discretion should be considered on a case-by-case basis whenever a medical or psychiatric
evaluation. diagnosis, treatment plan, or other documentation provided by tbereferring agency indicates the exi!itence of extreme disease or an impairment that makes detention problematic and/or removal Highly unlikely. Exercising prosecutorial discretion when considering whether
to accept these types of referrals allows DRO to:

• Show compassion and humanitarian concern, when appropriate. • Maxirnizeimpact on enforcement and removal by not deta"ining aliens who are
unable to complete the removal process because of severe illness. • Reduce catastrophic health care costs.

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 22 of 29

Subject: Discretion in Cases of Extreme or Severe Medical Concern Page :l
The following are some examples of medical conditions that muM trigger or flas a need for
case review and consideratWJo of prosecutorial discretion:

• Mvanced chronic conditions with complicatWJDs (e.g.• dialysis wilh liver disease):
• Myamed immuno-compromised diseases (e.g., mY/AIDS. cancer).
• Pending/recent organ transplants. • End-stage/terminal illnesses (e.g•• CIlDCef', ~ failure). • Paraplegic.sJmulti-limb amputees eonfmed to wheelchairs. • Multi-degenerative diseases in die very elderly. • Extr¢me meIJlal retardation/mental Bl:nesslmental incompetence.
• Blindness. • Significant pregnancy complications.

Alien!! in PRO Custody .

In situations where it is neither practical nor desiralJle to cancel a detainer or deny the pickup of a seriously ill alien (e.g., high profile case. lack of sufficient documentation), the POD should
take the adult or juvenUe into custOdy and proceed with immigration proceedings and custody
determinations as appropriate under (he law (e.g., parole or release recognizance). The case of my alien subject to mandatory detention shall be coordinated with \ocal counsel and the E.xecutive Office of Immigration R~view (EOIR) to eJqJedite proceedings or arrive at a
resolution. The U.s. Public Health Service (PHS) may be consulted wheD additional information or guidance is needed. to clarify me type and severity of a medical condition br to identify the special needs of a detainee. The case of any alien released from custody shan be handled in accordance with policy and procedure for non-detained aliens.

While the ultimate authority to make custody determinations rests with the FOD in rmst cases, requests for Headquarters assistance to address novel siwali>ns or medical conditions as they relate to adu1t detainees may be addressed to the Detention Management Division or
Removal Management Division. as appropriate. For minors detained in the custody of ICE. novel questions should be addressed to the Field Office Juvenile Coordinator (FOJC) or. if
unresolved, to the Headquarters National Juyenile Coordination Unit, due to the vulnerabilities and special requirements of this population.

Requests for assistance from the Headquarters' Custody Determination Unb: (CDU). Travel Document Uni!. (TDU), or Air Transportatbn Unit (A'TU) should be accompanied by the necessary medical documentation and immigration case history to enable headquarters staff to
anive at the best determination or arrangement for the alien,

For questions or concerns regarding t Detenl:ion Health Care Unit. at (202)
b6

ntact Iay M. Brooks. Chief,

I...AWFOERtJFOOPHFCrlrMfAEt NUTSES~NN~ Y
ICE07FOIA51539-00092? TJVE

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 23 of 29
EXHIBIT D

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 24 of 29

Policy Number: 10075.1 FEA Number: 306·112·0026 


Office ofthe Director 

U.S. Department of Homeland Security 500 12th Street, SW Washington, D.C. 20536

. June 17, 2011

u.s. Immigratio~
and Customs Enforcement

MEMORANDUM FOR:

All Field Office Directors 
 All Special Agents in Charge 
 All Chief Counsel 


FROM:

Director

SUBJECT:

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens

Purpose

This memorandum provides U.S. Immigrationand Customs Enforcement (ICE) personnel guidance on the exercise·ofprosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities. The memorandum also serves to make clear which agency employees may exercise prosecutorial discretion and what factors should be considered.

This memorandum builds on several existing memoranda related to prosecutorial discretion with special emphasis on the following:

• Sam Bernsen, Immigration and Naturalization Service (INS) General Counsel, Legal Opinion Regarding Service Exercise of ProsecutoriaI Discretion (July 15,1976);

• Bo Cooper, INS General Counsel, INS Exercise ofProsecutorial Discretion (July 11, 2000);

• Doris Meissner, INS Commissioner, Exercising Prosecutorial Discretion (November 17, 2000);
• Bo Cooper, INS General Counsel, Motions to Reopen for Considerations of Adjustment of Status (May 17, 2001);

• William J. Howard, Principal Legal Advisor, Prosecutorial Discretion (October 24,

2005);

• Julie L.Myers, Assistant Secretary, Prosecutorial and Custody Discretion (November 7,

2007);

..

• John Morton, Director, Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal of Aliens (March 2, 2011 );and

• John Morton, Director, Prosecutorial Discretion: Certain Victims, Witnesses, and 
 Plaintiffs (June 17,2011). 


www.ice.gov iSi

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 25 of 29
Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the . 
 Apprehension, Detention, and Removal ofAliens 


The following memoranda related to prosecutorial discretion are rescinded:
• Johnny N; Williams, Executive Associate Commissioner (EAC) for Field Operations, Supplemental Guidance Regarding Discretionary Referrals for Special Registration (October 31, 2002); and
• Johnny N. Williams, EAC for Field Operations, Supplemental NSEERS Guidance for Call-In Registrants (January 8,2003).
Background
One of ICE's central responsibilities is to enforce th~ nation's civil immigration laws in 
 coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and 
 . Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency's enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity ofthe immigration system. These priorities are outlined in the ICE Civil Immigration Enforcement Priorities memorandum of March 2,2011, which this memonmdum is intended to support.
Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise "prosecutorial discretion" if it is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. ICE, like anyother law enforcement agency, has prosecutorial discretion and may exercise"it in the ordinary course of enforcement1.When ICE favorably exercises prosecutorial discretion, it
essentially decides not to assert the full scope of the enforcement authority available to the agency
in a given case.
In the civil immigration enforcement context, the term "prosecutorial discretion" applies to a 
 broad range of discretionary enforcement decisions, including but not limited to the 
 following: 

• deciding to issue or cancel a notice of detainer; • deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA); • focusing enforcement resources on particular administrative violations or conduct; • deciding whom to stop, question, or arrest for an administrative violation; • deciding whom to detain or to release on bond, supervision, personal recognizance, or
other condition; • seeking expedited removal or other forms of removal by means other thana formal
removal proceeding in immigration court;
I The.Meissner memorandum's standard for prosecutorial discretion in a given case turned principally on whether a
the substarItial federal interest was present. Under this memorandum, starIdard is principally one of pursuing those
Cases that meet the agency's priorities for federal immigration enforcement generally.

- 2E&

2 &£

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 26 of 29
Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agencyfor the Apprehension, Detention, and Removal ofAliens
• settling or dismissing a proceeding; • granting deferred action, granting parole, or staying a final order of removal; • agreeing to voluntary departure, the withdrawal of an application for admission, or
other action in lieu of obtaining a formal order of removal; • pursuing an appeal; • executing a removal order; and • responding to or joining in a motion to reopen removal proceedings and to consider
joining in a motion to grant relief or a benefit.
Authorized ICE Personnel
Prosecutorial discretion in civil immigration enforcement matters is held by the Director2 and may be exercised, with appropriate supervisory oversight, by the following ICE employees according to their specific responsibilities and authorities:
• officers, agents, and their respective supervisors within Enforcement and Removal Operations (ERO) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;
• officers, special agents, and their respective supervisors within Homeland Sect¢.ty Investigations (HSI) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;
• attorneys and their respective supervisors within the Office of the Principal Legal Advisor (OPLA) who have authority to represent ICE in immigration removal proceedings before the Executive Office for Immigration Review (EOIR); and
• the Director, the Deputy Director, and their senior staff.
ICE attorneys may exercise prosecutorial discretion in any immigration removal proceeding before EOIR, on referral of the case from EOIR to the Attorney General, or during the pendency ,of an appeal to the federal courts, including a proceeding proposed or initiated by CBP or USCIS. If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or close a particular case or matter, the attorney should notify the relevant ERO, HSI, CBP, or USCIS charging official about the decision. In the event there is a dispute between the charging official and the ICE attorney regarding the attorney's decision to exercise prosecutorial diScretion, the ICE Chief Counsel should attempt to resolve the dispute with the local supervisors of the charging officiaL If local resolution is not possible, the matter should be elevated to the Deputy Director of ICE for resolution..

2 Delegation of Authority to the Assistant Secretary, Immigration and Customs Enforcement, Delegation No. 7030.2

(November 13, 2004), delegating among other authorities, the authority to exercise prosecutorial discretion in

immigration enforcement matters (as defined in 8 U.S.C. § 110 1(a)(17».

.

3
is

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 27 of 29
Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agencyfor the 
 Apprehension, Detention, and Removal ofAliens 


Factors to ConsiderWhen Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given . alien, ICE officers, agents,and attorneys should consider all relevant factors, including, but not limited to­

• the agency's civil immigration enforcement priorities;

• the person's length of presence in the United States, with particular consideration given

to presence while in lawful status;

• the circumstances ofthe person's arrival in the United States and the manner ofhis or her

entry,particularly if the alien came to the United States as a young child;

• the person's pursuit of education in the United States, with particular consideration given

to those who have graduated from a U.S. high school or have successfully pursued or are

pursuing a college or advanced degrees at a legitimate institution of higher education in

the United States;

• whether the person, or the person's immediate relative,has served in the U.S. military,

reserves, or national guard, with particular consideration given to those who served in

combat;

• the person's criminal history, including arrests, prior convictions, or outstanding arrest

warrants;

• the person's immigration history, including any prior removal, outstanding order of

removal, prior denial of status, or evidence of fraud;

• whether the person poses a national security or public safety concern;

• the person's ties and contributions to the community, including family relationships;

• the person's ties to the home country and condition~ in the country;

• the person's age, with particular consideration given to minors andthe elderly;

• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

• whether the person is the primary caretaker of a person with a mental or physical

disability, minor, or seriously ill relative; ;

• whether the person or the person's spouse is pregnant or nursing;

• whether the person or the person's spouse suffers from severe mental or physical illness;

• whether the person's nationality renders removal unlikely;

• Whether the person is likely to be granted temporary or permanent status or other relief

from removal, including as a relative of a U.S. citizen or permanent resident;

• whether the person is likely to be granted temporary or permanent status or other relief

from removal, including as an asylum seeker, or a victim of domestic violence, human

trafficking, or other crime; .and

.

• whether the person is currently cooperating or has cooperated with federal, state or local

law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the

Department ofLabor, or National Labor Relations Board, among others.

This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.

4

Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 28 of 29
Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the Apprehension, Detention, and Removal ofAliens
That said, there are certain classes of individuals that wat,Tant particular care. As was stated in the Meissner memorandum on Exercising Prosecutorial Discretion, there are factors that can help ICE officers, agents, and attorneys identify these cases so thatthey can be reviewed as early as possible in the process.
The following positive factors should prompt particular care and consideration:
• veterans and members ofthe U.S. armed forces; • long-time lawful permanent residents; •. minors and elderly individuals; • individuals present in the United States since childhood; • pregnant or nursing women; • victims of domestic violence; trafficking, or other serious crimes; • individuals who suffer from a serious mental or physical disability; and • individuals withserious health conditions.
In exercising prosecutorial discretion in furtherance ofICE's enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:
• individuals who pose a clear risk to national security; • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind; • known gang members or other individuals who pose a clear danger to public safety; and • individuals with an egregious record ofimmigration violations, including those with a
record of illegal re-entry and those who have engaged in immigration fraud.
Timing
While ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding. As was more extensively elaborated on in the Howard Memorandum on Prosecutorial Discretion, the universe of opportunities to exercise prosecutorial discretion is large. It may be exercised at any stage of the proceedings. It is also preferable for ICE officers, agents, and attorneys to consider prosecutorial discretion in cases without waiting for an alien or alien's advocate or counsel to request a favorable exercise ofdiscretion. Although affirmative requests from an alien or his or her representative may prompt an evaluation of whether a favorable exercise of discretion is appropriate in a given case, ICE officers, agents, and attorneys should examine each such case independently to determine whether a favorable exercise of discretion may be appropriate.
In cases where, based upon an officer's, agent's, or attorney's initial exaniination, an exercise of prosecutorial discretion may be warranted but additional information would assist in reaching a final decision, additional information may be requested from the alien or his or her representative. Such requests should be made in conformity with ethics rules governing

5

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Case 1:20-cv-00480-JEJ Document 2-17 Filed 03/24/20 Page 29 of 29 Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agencyfor the Apprehension, Detention, and Removal ofAliens communication with represented individuals3 and should always emphasize that, while ICE may be considering whether to exercise discretion in the case, there is no guarantee that the agency will ultimately exercise discretion favorably. Responsive information from the alien or his or her representative need not take any particular form and can range from a simple letter or e-mail message to a memorandum with supporting attachments. Disclaimer As there is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel to enforce federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
3 For questions concerning such rules, officers or agents should consult their local Office of Chief Counsel. 6

Case 1:20-cv-00480-JEJ Document 2-18 Filed 03/24/20 Page 1 of 4
Exhibit 18

Case 1:20-cv-00480-JEJ Document 2-18 Filed 03/24/20 Page 2 of 4

Case 1:20-cv-00480-JEJ Document 2-18 Filed 03/24/20 Page 3 of 4

Case 1:20-cv-00480-JEJ Document 2-18 Filed 03/24/20 Page 4 of 4

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 1 of 9
Exhibit 19

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 2 of 9
DECLARATION OF MONICA RUIZ
1. My name is Mónica Ruiz. I am the Executive Director at Casa San José. Casa San Jose is a community-based organization in Pittsburgh that works with the Latinx community.
2. I hold a ​master’s degree in Social Work and have a bachelor’s degree in Social Work from the University of Pittsburgh with a concentration in Psychology.
3. On April 2, 2019, I had the opportunity to tour York County Prison with the Advancement Project, Asian Americans United, Juntos, and Vietlead. We sent a letter to Simona Flores, who is the ICE Field Director for the Philadelphia office (which covers all of Pennsylvania) and to Warden at York. As far as I know they never followed up on our letter which told them about numerous health and hygiene issues. Attached is a copy of the letter.
4. During the tour, I heard about a number of troubling issues. One of the main issues was around hygiene. One gentleman told me how he had to have surgery, I believe for a ruptured appendix. Upon return to the jail he was put in a special housing unit (solitary confinement) after surgery to heal. The mattress that was in his cell was dirty. He described how there was body fluids including blood on the mattress. He was so scared he would get an infection that he did not lay down on the mattress. He asked several people to have it cleaned or replaced and nothing was done. Two days later he saw a nurse he knew walking down the hallway and he started banging on his door to get her attention and when she came to his cell she saw it only then, he was provided with a new one.
5. Another issue is that there is no microwave to heat up ramen noodles, so they have to use the hot water from the bathroom sink. But this is the same sink where people brush their teeth. It is not sanitary. I mean people spit there, and sometimes if people have sensitive gums they bleed. It was really upsetting to hear this.
6. I also heard there is an issue with the hot water running out and that sometimes the water is cold for showers. I wonder about the sinks and whether they are running out of hot water too.
7. York County Prison is large—2400 beds, 800 of which are reserved for ICE detainees. The layout of the prison also makes it impossible for social distancing. They are in pods, with 60 people to a pod. There is limited handwashing options—just 6 sinks for 60 people.
1

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 3 of 9
8. They spend 23 of their 24 hours in their pods. They get one hour of recreation, but it is not even outside—it a concrete room. Each pod goes in, so up to 60 people. It is probably half the size of a gym. There is a garage door is open sometimes.
9. Also the prison makes the detainees do the work of cleaning. They do this for free I think, or for something like $1 a day. But the detainees are not given protective gear to clean with (no masks or gloves), and are being exposed to bodily fluids.
10. I also talked with detainees who had issues with getting medical treatment. They told me it would take days to get a medical appointment after putting in the request. They also said that because the request form is only in English and many of them do not speak English, it makes it hard for them to even get a request in.
11. I also heard from detainees about the adequacy of the medical care. Multiple detainees told me that regardless of the ailment they were seeking help with, they were just told to take Tylenol or Motrin.
12. Our letter asked local ICE leadership and the prison to make a number of changes to make it safer and cleaner environment. ​See ​Letter at 5. And even after ICE and other staff of the jail, including the warden met with us to discuss concerns, no changes have been made. This is very troubling to me, especially now with COVID-19.
Executed on this 23​rd​ day of March 2020, in Pittsburgh, Pennsylvania.
Mónica Ruiz, MSW
2

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 4 of 9
July 31, 2019
VIA ELECTRONIC MAIL AND U.S. PRIORITY MAIL Ms. Simona Flores, Philadelphia Field Office Director Enforcement and Removal Operations U.S. Immigration Customs and Enforcement 114 North 8th Street Philadelphia, PA 19107 Mr. Clair Doll, Warden York County Prison 3400 Concord Road York, PA 17402
RE: FINDINGS FROM APRIL 2, 2019 STAKEHOLDER VISIT TO YORK COUNTY PRISON
Dear Ms. Flores and Mr. Doll: On behalf of Advancement Project, National Office, Juntos, and Casa San Jose, together with our partners VietLead and Asian Americans United, this letter addresses our findings from our stakeholder visit and tour of the York County Prison (“York”) on April 2, 2019, including a summary of the conversations held that day with people who were detained pursuant to immigration law.1 We appreciate that your colleagues from U.S. Immigration and Customs Enforcement (“ICE”) took the time to meet with us on April 2nd, including leading us throughout the facility for nearly 2.5 hours and answering the questions that we had along the way. We are also appreciative of having been able to speak to some of the people who were currently detained during the afternoon of the visit. We look forward to continued dialogue with ICE as well as York regarding conditions of confinement in immigration detention facilities in Pennsylvania, including York.
1 Our organizations obtained written consent from each person we spoke with.

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 5 of 9 Letter to ICE, Philadelphia Field Office and York County Prison July 31, 2019 Page 2
In addition, although VietLead and Asian Americans United were not able to attend the April 2 stakeholder visit to York, both groups wanted to also express some concerns they have repeatedly heard from their community members. VietLead is a community organization that supports the Vietnamese community in Philadelphia and South Jersey. Asian Americans United is a community organization that works primarily in the Chinatown, South and Northeast Philadelphia communities to advocate for the needs of the larger Chinese and other AAPI communities of Philadelphia.
We write to you now to inform you of the findings stemming from our visit. Unfortunately, we witnessed and heard from people a number of issues with which we are deeply concerned. We are worried about the serious problems we witnessed.
As non-profit organizations that believe in and advocate for racial justice for all, including immigrants, we intend to publish a report about our findings in order to provide the public with the same information we witnessed. We therefore invite you to provide any feedback or response to this letter, especially as regards the concerns that we raise. We believe in migration as a human right, and will continue to advocate for the release of all people currently held in immigration detention.
Here are the main issues that we witnessed and heard through interviews:
Hygiene: We witnessed and heard accounts of the awful ways that York denies people in detention basic hygiene and human dignity. This is a direct violation of the PBNDS standards, requiring that facility cleanliness and sanitation be maintained “at the highest level.”2 People we spoke with reported that the only access to water is from a faucet that is used both by the cleaning and the cooking staff, in addition to the sixty people living in each pod. Besides the concerns for crosscontamination between raw, uncooked foods and bodily fluids, there is a baseline concern for the cleanliness and safety of the water itself. We heard complaints of the water smelling like fecal matter and sewage. Individuals also reported that the clothing provided to them was inadequate – the facility is kept so cold that most people we spoke with had to buy additional clothing from the commissary in order to stay warm. We also heard several complaints about the laundry – including reports that clothing sent to be laundered would return more soiled than they were sent.
Access to Medical and Mental Health Care: We observed the medical area of York County Prison during our visit. We were also told by ICE and facility officials that there was a total of eight nurses and four certified nurse aides as well as a dentist on site. According to our guides, individuals are required to have a medical inspection conducted by a registered nurse within 72 hours of their intake at the facility. The existence of these resources, however, does not mean they are used. For example, individuals do not actually receive any dental care unless they have been at the facility for over a year or require an extraction. Similarly with eye care. We also heard
2 U.S. Immigration & Customs Enforcement, Performance-Based National Detention Standards, 2011, Section 1.2.I, Environmental Health and Safety (Revised Dec. 2016). “This detention standard protects detainees, staff, volunteers and contractors from injury and illness by maintaining high facility standards of cleanliness and sanitation, safe work practices and control of hazardous substances and equipment.”
2

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 6 of 9 Letter to ICE, Philadelphia Field Office and York County Prison July 31, 2019 Page 3
several complaints about the severe delays in the provision of medical care – people would sometimes have to wait days or weeks to have their medical needs addressed.
Inhumane Work Conditions: York County Prison first opened in 1979 and has held immigrants through an Intergovernmental Service Agreement (IGSA) contract with ICE since 1992. The facility has a total population of about 1,500, with the capacity to hold up to 800 in ICE custody. At the time of our visit, York was detaining 690 migrating people. Despite these numbers of incarcerated people, York has no outside cleaning service – the upkeep of the facility is mostly left to the people incarcerated. We witnessed this while touring York and spoke with several people with a range of roles. York depends on the labor of those who are currently detained for janitorial services, cleaning, cooking, and several other positions. Although the work program is described as “voluntary” and individuals have to apply to obtain a position, this characterization makes us question how “voluntary” the work is when the facility is so heavily dependent on the people detained as a work force. We also believe that being paid just over $1.40 a day for services like cleaning and cooking is an outrageous abuse of the rights of people being detained at York. Without this source of labor, York would be required to fill these roles by outsiders who would be required to earn at least a minimum hourly wage. 3
Quality of Life: On our tour of the facility, we saw the “pods” where people are detained. We learned that people are forced to stay in these pods for twenty-three hours a day – including eating all of their meals in the pods. The bathrooms in these pods had no privacy – toilets and showers without any curtains – despite the fact that male and female staff frequently walk into the pods. People who are detained at York also never go outdoors – even the recreation area is a giant, concrete room with garage-door-style “windows” that are opened on occasion. According to the National Institute for Jail Operations, the loss or reduction of recreation-related amenities, such as indoor recreation, and no fresh air or direct sunlight, amounts to a significantly lower quality of life.4 These are concerns that could very easily be remedied with small changes like curtains for the showers, or some form of outdoor access for recreation.
Food Quality and Quantity: On our tour of the facility, we were told that York does accommodate the meal preferences of the people who are currently detained. However, in reality we found that these accommodations resulted in less than desirable food provided to people. Complaints included half-cooked meat, spoiled juice, and drinking water (from both faucets and water coolers) that smells like sewage. Some described being given a piece of stale bread and a soy patty multiple times a day. Given how lengthy people’s incarceration can be, the provision of this nutrient-low meal is especially concerning. We also heard about people relying on commissary to supplement the lackluster meals – despite commissary only having junk food and other nutrition-less snacks like chips and candy. In addition, commissary items are expensive – even compared to other prison
3 U.S. Immigration & Customs Enforcement, Performance-Based National Detention Standards 2011, Section 5.8, 405-509 (2016 ed.), http://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf (stating that each work program be in compliance with the PBNDS requiring that “all work, other than personal housekeeping, be voluntary and not required; that compensation be ‘at least $1.00 USD per day;’ and that work be limited to 8 hours per day, 40 hours per week”). 4 National Institute for Jail Operations, Prisoner Recreation: Right or Privilege, 2017, https://jailtraining.org/prisonerrecreation-right-or-privilege/ (last accessed July 28, 2019).
3

Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 7 of 9 Letter to ICE, Philadelphia Field Office and York County Prison July 31, 2019 Page 4
facilities. York also denies access to hot water and microwaves – so even meals available for purchase from the commissary like ramen or macaroni-and-cheese, must be made and eaten with the same cold, smelly bathroom sink water. There is no reason for these practices other than neglect and an unwillingness to provide for the most basic human needs.
Access to Information and to Visitors: As part of the PBNDS guidelines, ICE encourages facilities to provide opportunities for both contact and non-contact visitation with approved visitors. However, the York facility only allows non-contact visits between the people detained and their visitors. Video visitation is available, but costly. Phone calls are also costly – costs which rise depending on the country being called. Despite the availability of tablets in the pods with WiFi, we heard several complaints of the spotty WiFi that rendered the tablets effectively useless. We saw the library at the York facility designed for legal research – it had minimal resources and the legal books had not been updated since 2007. Further, most if not all of the legal resources, including the online databases, are in English, despite the fact that many of the people detained at York do not speak English. We are aware that the Pennsylvania Immigration Resource Center (PIRC) provides “Know-Your-Rights” presentations pro bono and provides pro bono legal services. However, one small pro bono legal services provider cannot meet the legal needs of the over 600 people who are detained at York.
We bring attention to the aforementioned concerns to you in the hopes of remedying these issues. We oppose the criminalization of immigrants, including their detention, for simply existing in the United States. Every person deserves access to basic things like fresh, healthy food, clean, safe drinking water, and responsive healthcare. It is ICE’s responsibility to ensure the safety and humane treatment of immigrants detained in its custody – even in those facilities that are run by state entities. It is also York’s responsibility to ensure safety and humane treatment as the entity that is housing these migrants. Our visit to York County Prison was eye opening and depressing – witnessing how the current immigration detention system treats, criminalizes, and punishes vulnerable populations – people who should be released to their families and communities whenever possible. The conditions and treatment while they are at York moves us to advocate on their behalf, and to seek remedies for this callous and unnecessary treatment. Moreover, the same can be said about the way the Commonwealth of Pennsylvania treats people who are incarcerated under the criminal legal system. All who are detained at York whether under Federal immigration law or under Pennsylvania law, are subjected to these horrific conditions. We understand that immigration detention is just one piece of the larger mass incarceration machine in the United States.
We cannot sit still while thousands of people are detained at York and other ICE facilities, suffering under what we see as cruel, inhumane, and unnecessary treatment, and in violation of the Universal Declaration of Human Rights and the U.N. Convention Against Torture.5 Many of the
5 UN General Assembly, Universal Declaration of Human Rights, Article 5 (1948) (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”); Article 16, UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 16 (1984) (“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the acquiescence of a public official or other person acting in an official capacity.”)
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Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 8 of 9 Letter to ICE, Philadelphia Field Office and York County Prison July 31, 2019 Page 5
concerns and issues we have listed here could be easily remedied. We hope that ICE and York will take its responsibility seriously and resolve these concerns. Please respond to us about any of the above concerns we have shared within the next thirty (30) days, including if you think we have misstated numbers or made any errors in recounting our tour experience. We would also like to request an in-person meeting to discuss our concerns – please also respond within the next thirty (30) days if you would like to schedule that meeting. As mentioned previously, we intend to write up a report with our findings and provide the public with access to this information.
In light of the serious concerns we observed and heard from individuals detained at York, we recommend that ICE take the following steps:
1. End ICE usage of the York facility effective immediately; 2. End the detention of migrating individuals; 3. Release individuals under humanitarian parole who have passed credible fear or
individuals who are sole caregivers, are elderly, or have a medical condition. 4. Facilitate access to pro bono legal services for those immigrants who are currently
detained;
While we do not believe that any amount of reform at York can justify its continued incarceration of immigrants, we believe that the following implementations would vastly improve the quality of life for people currently detained at the facility. In the short term, we propose the following recommendations that can be implemented immediately to address some of the concerns highlighted in this letter. These include:
1. Require more personnel to staff the facility and stop the dependence on those who are incarcerated, either for immigration or under the criminal legal system, for labor in food service and janitorial duties, or increase the payment to those who are detained to at least the federal minimum wage instead of $1.40/day.
2. Diversify the food items available in the commissary to include healthy items with nutritional value such as fruits, vegetables, yogurt, etc., and ensure that no expired items are sold.
3. Provide people who are detained with access to a separate hot water faucet and microwaves so that they can heat and consume meal items available at the commissary.
4. Create separate sink facilities designated for cleaning the pod, maintaining personal hygiene, food preparation, and drinking, and ensure the quality and safety of the water supply.
5. Utilize bleach and soap in the laundering of all linens and clothes. 6. Require dental screenings after the first month of detention. 7. Allow the implementation of approved contact visits between people who are detained and
their families and loved ones. 8. Allow people who are detained to be out of their assigned pods with the exception of counts
and meal times. 9. Improve access to legal services, including up-to-date case books and immigration law
manuals in multiple languages, not just English.
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Case 1:20-cv-00480-JEJ Document 2-19 Filed 03/24/20 Page 9 of 9 Letter to ICE, Philadelphia Field Office and York County Prison July 31, 2019 Page 6
10. Improve Wi-Fi capability to ensure that people who are detained can benefit from the use of tablets to communicate with friends and family without exorbitant usage rates.

We believe that these are small asks in light of the large amount of money that York County Prison receives from ICE to spend on housing people in immigration detention.

Please do not hesitate to contact us with any questions or concerns. Please direct your questions or concerns to LJimenez@advancementproject.org and JAlcantara@advancementproject.org or (202) 728-9557. Thank you for your time and attention to this matter.

Sincerely,

/s/ Losmin Jimenez Losmin Jimenez, Project Director, Immigrant Justice and Senior Staff Attorney* Advancement Project *Admitted in Florida, Maryland, and Washington, DC

/s/ Jessica Alcantara Jessica Alcantara, Staff Attorney* Advancement Project *Admitted in New York

/s/ Miguel Andrade Miguel Andrade Communications Manager Juntos

/s/ Nicole Bañales Nicole Bañales Case Manager QVS Fellow Juntos

/s/ Monica Ruiz Monica Ruiz, MSW Executive Director Casa San Jose

/s/ Alix Webb Alix Webb Executive Director Asian Americans United

/s/ Nancy Dung Nguyen Nancy Dung Nguyen Executive Director VietLead

CC: Joseph D. Dunn, Assistant Field Office Director, ICE (York, PA) Henry C. Harrison, Supervisory Detention and Deportation Officer, Enforcement and Removal Operations, ICE (York, PA) Cameron Quinn, Office of Civil Rights and Civil Liberties, DHS U.S. Representative Elijah E. Cummings, Chairman of the House Committee on Oversight and Reform

6

Case 1:20-cv-00480-JEJ Document 2-20 Filed 03/24/20 Page 1 of 3
Exhibit 20

Case 1:20-cv-00480-JEJ Document 2-20 Filed 03/24/20 Page 2 of 3

Eastern Region Office PO Box 60173 Philadelphia, PA 19102 215-592-1513 T 215-592-1343 F
Central Region Office PO Box 11761 Harrisburg, PA 17108 717-238-2258 T 717-236-6895 F
Western Region Office PO Box 23058 Pittsburgh, PA 15222 412-681-7736 T 412-681-8707 F

March 13, 2020
VIA EMAIL TO: Simona Flores Lund Field Office Director Enforcement and Removal Operations, Philadelphia Field Office U.S. Department of Homeland Security 114 North 8th Street Philadelphia, PA 19107 Simona.L.Flores@ice.dhs.gov
Re: ICE enforcement and COVID-19
Dear Director Flores-Lund:
We write to ask that you take urgent measures to align the practices of ICE’s Philadelphia Enforcement and Removal Operations (ERO) with the public health need to mitigate the coronavirus disease 2019 (COVID-19) pandemic.
Community transmission of COVID-19 is now ongoing in Pennsylvania, and ICE’s practices will influence its severity. If residents of immigrant communities decline to seek medical treatment because they fear immigration enforcement, the impact and spread of COVID-19 could worsen. If individuals who have been exposed to COVID-19 are placed in immigration detention, the spread of the virus in detention centers will be swift and unstoppable. And COVID-19’s threat to detainees, correctional staff, and the broader community only increases with each additional person detained.
In short, the more people ICE targets and detains during the COVID-19 pandemic, the more deadly the consequences might be for detainees, correctional staff, and others. Accordingly, we urge you to take four immediate actions to protect the health and safety of all Pennsylvania residents:
• Publicly reaffirm the Philadelphia ERO’s commitment to treat medical and healthcare facilities, including hospitals and doctors’ offices, as “sensitive locations” where ICE enforcement normally will not occur.
• Direct the Philadelphia ERO and its partners to ensure that immigration detainees have adequate and free access to health care, hygiene products, and telephone and other communication services, including confidential calls with attorneys.

1

Case 1:20-cv-00480-JEJ Document 2-20 Filed 03/24/20 Page 3 of 3
• Direct the Philadelphia ERO to increase its use of alternatives to detention, and to cease all new detentions.
• Direct the Philadelphia ERO to undertake a case-by-case review of the individuals currently in its custody and identify those who should be released. This includes individuals who were granted bond but are unable to afford their bond (meaning they remain detained not because they were deemed a danger or flight risk to warrant detention, but simply are unable to afford their bond). It also includes individuals eligible for release through parole redeterminations.
Although ICE may previously have made case-by-case determinations regarding detention, these determinations were presumably not made with a global pandemic in mind. It is now critical to recalibrate each of these decisions in light of the urgent public health risks posed by COVID-19 in a carceral setting.
Although in many respects your office and the ACLU-PA probably have different views about which policies advance public safety, when it comes to COVID-19 perhaps we can find common ground. We hope you will agree that, for the sake of all Pennsylvania residents and communities, customary enforcement practices must be altered to address this pandemic. We would welcome the opportunity to discuss this letter with you. Thank you for your consideration.
Respectfully,
Witold Walczak Legal Director
Vanessa Stine Immigrants Rights’ Attorney
Muneeba Talukder Immigrants’ Rights Legal Fellow
cc: Gregory Brawley (gregory.s.brawley@ice.dhs.gov) Joseph Gigliotti (joseph.gigliotti@ice.dhs.gov) Troy Holl (Troy.Holl@ice.dhs.gov) Joshua Reid (Joshua.G.Reid@ice.dhs.gov) Chris VarKonda (Christopher.M.Varkonda@ice.dhs.gov
2

 
 Case 1:20-cv-00480-JEJ Document 7 Filed 03/25/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,

Case No. 1:20-cv-00480-JEJ Judge John E. Jones III

Respondents-Defendants.

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
Pursuant to 28 U.S.C. § 2241 and Federal Rule of Civil Procedure 65(a)-(b), Petitioners-Plaintiffs (“Plaintiffs”) hereby move this Court for a temporary restraining order and/or preliminary injunction that bars Defendants from continuing to detain Plaintiffs. In support of this motion, Plaintiffs state as follows:
1. As set forth in Plaintiffs’ Complaint for Declaratory and Injunctive Relief, Defendants are detaining Plaintiffs in conditions that violate the Fifth and Fourteenth Amendment Due Process Clauses.
2. As set forth in the Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction (“MOL”), Plaintiffs have satisfied the four-part test for the issuance of a temporary restraining 1

Case 1:20-cv-00480-JEJ Document 7 Filed 03/25/20 Page 2 of 5
order and/or preliminary injunction. As set forth in the MOL, Plaintiffs are likely to succeed on the merits of their constitutional claims and Plaintiffs will suffer irreparable harm unless the requested injunctive relief is granted. Also as set forth in the MOL, The government has no legally cognizable interest in detaining Plaintiffs in clear violation of their constitutional rights, and granting the requested injunctive relief will not result in any foreseeable, serious harm to the Defendants or the public. To the contrary, it is in the public interest for the government to respect constitutional due process rights and avoid the rampant spread of COVID-19 in detention facilities.
3. Through the undersigned counsel, Plaintiffs gave notice to Assistant U.S. Attorney, Joanne Sanderson, about the filing of this action and motion for a temporary restraining order and/or preliminary injunction. All documents filed with this Court, including those accompanying this motion, are being served on her electronically, within moments of filing.
4. Plaintiffs request that the Court immediately schedule a hearing and issue a temporary restraining order and/or preliminary injunction enjoining Defendants from continuing to detain Plaintiffs in violation of their constitutional rights.

Case 1:20-cv-00480-JEJ Document 7 Filed 03/25/20 Page 3 of 5
WHEREFORE, Plaintiffs respectfully requests that this Court enter a temporary restraining order and/or preliminary injunction to enjoin Defendants from continuing to detain Plaintiffs in violation of their constitutional rights.

Dated: March 25, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) *

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

Case 1:20-cv-00480-JEJ Document 7 Filed 03/25/20 Page 4 of 5

American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org
*Petition for permission to file pro hac vice forthcoming

CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing motion, together with accompanying Memorandum of Law and associated exhibits, on counsel of record via the Court’s ECF filing system and via email courtesy copy to Assistant U.S. Attorney, Joanne Sanderson, at the office of the United States Attorney for the Middle District of Pennsylvania.

Dated: March 25 2020

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org

Case 1:20-cv-00480-JEJ Document 7 Filed 03/25/20 Page 5 of 5

CERTIFICATE OF NON-CONCURRENCE In accordance with Local Rule 7.1, Petitioner’s counsel sought concurrence from the U.S. Attorney’s Office. The U.S. Attorney’s Office does not concur in the relief sought in Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction.

Dated: March 25, 2020

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org

Case 1:20-cv-00480-JEJ Document 7-1 Filed 03/25/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs, vs. CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents-Defendants.

Case No. 1:20-cv-00480-JEJ Judge John E. Jones III

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER AND/OR PRELIMINARY INJUNCTION COME NOW, this _____ day of ______________, 2020, after consideration of Plaintiffs’ Verified Petition for Habeas Corpus, Motion for Temporary Restraining Order and/or Preliminary Injunction, Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction, and the Declarations and Exhibits submitted in support of Plaintiffs’ Motion; and it appearing that Plaintiffs will suffer immediate and irreparable harm, injury, and damage from Defendants’ conduct unless they are enjoined and restrained as requested in Plaintiffs’ Motion, it is hereby ORDERED, ADJUDGED, and DECREED as follows: 1. The Court makes the following findings:
1

Case 1:20-cv-00480-JEJ Document 7-1 Filed 03/25/20 Page 2 of 3

a. Defendants’ continued detention in civil immigration

custody of individuals at increased risk for severe illness, including all people over

ages forty-five and older and persons of any age with underlying medical

conditions that may increase the risk of serious COVID-19, violates the Due

Process Clause;

b. There is a likelihood that Plaintiffs will succeed on the

merits of their claims that the Defendants’ actions violate Plaintiffs’ constitutional

rights.

c. Plaintiffs will suffer substantial and irreparable injury unless

this Order is entered;

d. Greater injury will be inflicted upon Plaintiffs by the denial

of the requested relief than will be inflicted upon Defendants by the granting of the

requested relief;

e. Plaintiffs have no adequate remedy at law; and

f. The public interest will be served by the Order.

2.

IT IS THEREFORE ORDERED THAT Defendants, together with

their representatives, agents, servants, and all others acting on their behalf or in

concert with them, are hereby ENJOINED and RESTRAINED, until further Order

of the Court, from continuing to detain Plaintiffs.

2

Case 1:20-cv-00480-JEJ Document 7-1 Filed 03/25/20 Page 3 of 3

3.

Plaintiffs, by their attorneys, agents, or other designees, may serve

copies of this Order upon Defendants and upon any person acting in concert or

participating with them in the activities referred to above.

BY THE COURT

_________________________________________ United States District Judge

3

 
 Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents-Defendants.

Case No. 1:20-cv-00480-JEJ Judge John E. Jones III

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY
INJUNCTION

Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 2 of 53

TABLE OF CONTENTS

Page

INTRODUCTION ....................................................................................................1
NOTICE TO DEFENDANTS ..................................................................................4
FACTUAL BACKGROUND...................................................................................4
I. COVID-19 Poses Grave Risk of Serious Illness or Death to Older Adults and Those with Certain Underlying Medical Conditions. ..................6
II. COVID-19 Is Overwhelming Local Healthcare Systems and Rural Health Systems are Particularly Vulnerable...................................................9
III. People Detained at the ICE Facilities Are at Increased Risk of COVID-19. .....................................................................................................9
IV. Continued ICE Detention is Unsafe for Those Vulnerable to COVID19. .................................................................................................................15
V. Plaintiffs Must Be Released from Custody Because They are Vulnerable to Serious Illness or Death If Infected by COVID-19 ...............17
VI. Defendants are Aware that Releasing Detainees is the only Viable Option to Protect Vulnerable Individuals from COVID-19.........................23
VII. ICE has Discretion to Release Inmates for Medical Reasons ......................23
LEGAL STANDARD.............................................................................................25
ARGUMENT ..........................................................................................................26
I. Plaintiffs Meet their Burden to Show the Need For A Temporary Restraining Order and Preliminary Injunction. ............................................26
A. Plaintiffs Are Likely to Succeed on the Merits of Establishing a Constitutional Violation. ....................................................................27
1. Plaintiffs’ Continued Detention at the ICE Facilities Violates Their Due Process Rights. .........................................27
2. Defendants’ Deliberate Indifference to Plaintiffs’ Health and Safety Violates Even the Stricter Eighth Amendment Standards. .................................................................................31
B. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable Harm. ............................................................37

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Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 3 of 53

TABLE OF CONTENTS (continued)

Page

C. There is a Strong Public Interest in Minimizing the Spread of COVID-19 through Social Distancing and Hygiene Practices that are Impossible at the ICE Facilities. ...........................................39
D. The Balance of Equities Favors Releasing the Plaintiffs over Continued Detention While In the Midst of this Public Health Crisis. .................................................................................................. 41
II. The Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a Temporary Restraining Order. ......................................................42

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Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 4 of 53
TABLE OF AUTHORITIES
Page(s)
Cases
Aruanno v. Johnson, 683 F. App’x 172 (3d Cir. 2017) ........................................................................26
Austin v. Pa. Dep’t of Corr., No. 90-7497, 1992 WL 277511 (E.D. Pa. Sept. 29, 1992).................................38
Bell v. Wolfish, 441 U.S. 520 (1979)............................................................................................26
Boone v. Brown, No. 05-0750, 2005 WL 2006997 (D.N.J. Aug. 22, 2005)..................................38
Brigaerts v. Cardoza, 952 F.2d 1399 (9th Cir. 1992) ............................................................................37
Brown v. May, No. 2:16-cv-01973, 2019 WL 5445923 (E.D. Pa. Oct. 23, 2019)......................30
Brown v. Plata, 563 U.S. 493 (2011)......................................................................................26, 27
Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007).................................................................39
Cerro Fabricated Prod. LLC v. Solanick, 300 F. Supp. 3d 632 (M.D. Pa. 2018).................................................................25
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)............................................................................................32
E. D. v. Sharkey, 928 F.3d 299 (3d Cir. 2019) .........................................................................26, 28
In re Extradition of Alejandro Toledo Manrique, No. 19-71055, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) ...........3, 16, 36, 42
Farmer v. Brennan, 511 U.S. 825 (1994)............................................................................................34
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Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 5 of 53
Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621 (D.N.J. Apr. 5, 2019) ....................................30
Hargis v. Atlantic Cty. Justice Facility, No. 10-1006, 2010 WL 1999303 (D.N.J. May 18, 2010) ..................................30
Helling v. McKinney, 509 U.S. 25 (1993)........................................................................................32, 39
Hinerman v. Karnes, No. 14-0408, 2015 WL 268761 (M.D. Pa. Jan. 21, 2015) ...........................33, 36
Hubbard v. Taylor, 538 F.3d 229 (3d Cir. 2008) ...............................................................................28
Hutto v. Finney, 437 U.S. 678 (1978)............................................................................................25
Idowu v. Clinton Cty. Corr. Facility, No. 1:20-cv-00146 (M.D. Pa.)............................................................................19
Inmates of Northumberland Cty. Prison v. Reish, No. 08-cv-0345, 2009 WL 8670860 (M.D. Pa. Mar. 17, 2006).........................31
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) .................................................................................38
Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009).................................................................25
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) ...............................................................................37
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003) ...............................................................................26
Padilla v. U.S. Immigration & Customs Enforcement, 387 F. Supp. 3d 1219 (W.D. Wash. 2019) .........................................................38
Petty v. Nutter, No. 15-3430, 2016 WL 7018538 (E.D. Pa. Nov. 30, 2016)...............................30
-iv-

Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 6 of 53
Phillips v. Superintendent Chester SCI, 739 F. App’x 125 (3d Cir. 2018) ........................................................................34
Pratt v. Doll, 3:19-cv-00342-RDM-CA (M.D. Pa.) .................................................................22
S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 446 (D.N.J. 2001) ..........................................................................43
Simcox v. Delaware County, No. 91-6874, 1992 WL 97896 (E.D. Pa. May 5, 1992) .....................................43
Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681 (M.D. Pa. May 11, 2007) ..............................33
Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991) .........................................................................42, 43
Thakker v. Lowe, 1:19-cv-00664 (M.D. Pa.)...................................................................................18
Thomas v. Tice, 948 F.3d 133 (3d Cir. 2020) ...............................................................................32
Union Cty. Jail Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983) ...............................................................................32
United States v. Barkman, Case No. 3:19-cr-0052, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020)...........................................................................................3, 17, 36
United States v. Fellela, No. 3:19-cr-79, 2020 U.S. Dist. LEXIS 49198 (D. Conn. Mar. 20, 2020) ...............................................................................................................3, 36
United States v. Raihan, No. 20-cr-68, Dkt. No. 20 (E.D.N.Y. Mar. 12, 2020) ..................................17, 36
United States v. Stephens, No. 15-cr-95, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) .............3, 16, 35, 36
Wagner v. County of Montgomery, No. 10-2513, 2014 WL 4384493 (E.D. Pa. Sept. 4, 2014).................................30
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Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 7 of 53
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)................................................................................................25
Xochihua-Jaimes v. Barr, Order, No. 18-71460.................................................................................3, 16, 36
Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................................26
Other Authorities
Coronavirus (COVID-19), Pennsylvania Department of Health, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Coron avirus.aspx (last visited Mar. 24, 2020)................................................................9
Chief Justice Mike McGrath, Letter to Montana Courts of Limited Jurisdiction (Mar. 20, 2020), available at https://courts.mt.gov/Portals/189/virus/Ltr%20to%20COLJ%20Jud ges%20re%20COVID-19%20032020.pdf?ver=2020-03-20115517-333 .........................................................................................................17
Fed. R. Civ. P. 65 .....................................................................................................42
ICE detainee tests positive for COVID-19 at Bergen County Jail, U.S. Immigration & Customs Enforcement (Mar. 24, 2020), https://www.ice.gov/news/releases/ice-detainee-tests-positivecovid-19-bergen-county-jail .........................................................................15, 35
ICE Guidance on COVID-19, U.S. Immigration & Customs Enforcement, available at www.ice.gov/covid19 .............................................13
J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, Pro Publica, Mar. 20, 2020, https://bit.ly/3bqm2VT .............................16
John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/ .........................................................................................16, 35
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Nathaniel Lash and Brett Sholtis, Demand for ICU beds will greatly outstrip availability if coronavirus hits Pa. hard, Bucks County Courier Times (Mar. 20, 2020), https://www.buckscountycouriertimes.com/news/20200320/deman d-for-icu-beds-will-greatly-outstrip-availability-if-coronavirushits-pa-hard .........................................................................................................40
Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020), available at https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF..............................17, 35
Priscilla DeGregory, Coronavirus shuts down some NYC and NJ immigration courts, New York Post (Mar. 24, 2020), https://nypost.com/2020/03/24/coronavirus-shuts-down-some-nycand-nj-immigration-courts/ .................................................................................35
Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH, Letter to House and Senate Committees on Homeland Security (Mar. 19, 2020), available at https://whistleblower.org/wpcontent/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-toCongress.pdf .................................................................................................24, 35
Coronavirus disease (COVID-19) Pandemic, World Health Organization, https://www.who.int/emergencies/diseases/novelcoronavirus-2019 (last visited Mar. 24, 2020) .....................................................6
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INTRODUCTION COVID-19, the disease caused by a novel coronavirus, is an out-of-control wildfire raging across the United States. In just weeks, the number of cases has exploded. There are no vaccines, no cures, and no one is immune. The question now is what we can do to protect the most vulnerable individuals—older adults and others with underlying serious medical conditions—from contracting COVID-19 and fanning the further spread of the disease. And the only answer, according to public health experts, is to deprive COVID-19 of the fuel it needs by allowing people to keep safe distances from one another, to reduce the number of infections and ease the strain on overwhelmed local health systems. The Plaintiffs in this case are civil detainees of Immigration and Customs Enforcement (“ICE”) in York County Prison, Clinton County Correctional Facility, and Pike County Correctional Facility (collectively “ICE Facilities”), who are currently housed in conditions that put them right in the path of the fire. They are a mix of older and younger adults, all with pre-existing medical conditions, such as heart disease, diabetes, chronic kidney disease, immunosuppression, hepatitis B, liver disease, and hypertension, which make them particularly vulnerable to serious complications or death from COVID-19. They are being held in cramped conditions where “social distancing” and adequate hygiene are impossible. Indeed, two
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Plaintiffs already exhibit symptoms associated with COVID-19, but they have not been tested or released to get medical treatment.
Clustering vulnerable individuals into a tinderbox and waiting for COVID-19 to explode through detention centers is not just a humanitarian crisis, it is a constitutional one. Courts have long recognized that the Eighth Amendment prohibition on cruel and unusual punishment forbids the government from leaving the incarcerated to suffer and die from infectious disease. As civil detainees, the Plaintiffs are entitled to due process protections even greater than what the Eighth Amendment requires. The Defendants, the wardens of ICE Facilities in Pennsylvania and U.S. government officials with authority over those facilities, are public officials charged to uphold the Constitution and protect the Plaintiffs. And the Constitution demands that these Defendants must act before the COVID-19 wildfire sweeps through the ICE Facilities, not wait until it is too late.
Because the Defendants have been unwilling to protect the Plaintiffs’ health and constitutional rights, the Court must intervene. There is growing recognition among courts and even prison systems that releasing vulnerable detainees is the only way to protect them. Just yesterday, a panel of the Ninth Circuit sua sponte ordered the immediate release from civil detention of an immigrant who is in removal proceedings. This order was necessary “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact
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immigration detention centers.” Xochihua-Jaimes v. Barr, Order, No. 18-71460 (9th Cir. Mar. 23, 2020). Other courts have taken similar actions. In another immigration matter, the court ordered the release of a 74-year old detainee and concluded, “the government’s suggestion that [the plaintiff] should wait until there is a confirmed outbreak of COVID-19 in [the facility] before seeking release is impractical. By then it may be too late.” In re Extradition of Alejandro Toledo Manrique, No. 1971055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020). Another court ordered the release of a diabetic criminal defendant who was awaiting sentencing on federal charges, even though there had been no COVID-19 cases in the facility and the court credited the government’s representations about the precautions taken to prevent the spread of coronavirus. United States v. Fellela, No. 3:19-cr-79, 2020 U.S. Dist. LEXIS 49198, at *1 (D. Conn. Mar. 20, 2020); see also United States v. Stephens, (reconsidering bail determination and releasing pretrial detainee; “[a]lthough there is not yet a known outbreak among the jail and prison populations, inmates may be at heightened risk of developing COVID-19 should an outbreak develop.”); United States v. Barkman, Case No. 3:19-cr-0052, 2020 U.S. Dist. LEXIS 45628, at *1, *3 (D. Nev. Mar. 17, 2020) (suspending confinement order and noting, “conditions of pretrial confinement create the ideal environment for the transmission of contagious disease”).
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The Court should join the growing chorus of judges around the country who recognize that this public health crisis demands immediate intervention. For the reasons discussed below, the Court should immediately issue a temporary restraining order or preliminary injunction requiring ICE to temporarily release Plaintiffs from custody so they have a chance to avoid infection and potential death from COVID19. The Court has the authority to do so, and both the Constitution and public interest demand it in these extraordinary times.
NOTICE TO DEFENDANTS Counsel for the Plaintiffs emailed the U.S. Attorney’s Office for the Middle District of Pennsylvania to advise it of the emergency reasons requiring them to seek a temporary restraining order and/or preliminary injunction. In addition, the Plaintiffs’ Counsel e-mailed a copy of the Petition for a Writ of Habeas Corpus and Complaint and Motion for Temporary Restraining Order and/or Preliminary Injunction, together with exhibits, to Assistant U.S. Attorney Joanne Sanderson.
FACTUAL BACKGROUND As the Court is undoubtedly aware, COVID-19 is a disease that has reached pandemic status. Nevertheless, to support this motion and provide a broader context for the requested relief, the Plaintiffs have submitted a host of declarations from corrections, medical, and public health experts:
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 Exhibit 11 is the declaration of Dr. Joseph Amon [hereafter, “Amon Decl.”], a public health expert and epidemiologist who is the Director of the Office of Global Health at Drexel University’s Dornsife School of Public Health. Amon Decl. ¶ 1. Dr. Amon previously worked as an epidemiologist at the Centers for Disease Control and Prevention (CDC) and has served on advisory committees for the World Health Organization (WHO). Id. at ¶ 2. One of his “main areas of research focus relates to infectious disease control, clinical care, and obligations of government related to individuals in detention settings.” Id. at ¶ 4.
 Exhibit 2 is the declaration of Dr. Jonathan Louis Golob [hereafter, “Golob Decl.”], a specialist in infectious diseases and internal medicine, subspecializing in infections in immunocompromised patients, who is an Assistant Professor at the University of Michigan School of Medicine. Golob Decl. ¶ 1. Dr. Golob obtained his medical degree and completed his residency at the University of Washington School of Medicine in Seattle, where he also completed a Fellowship in Internal Medicine Infectious Disease. Id. Dr. Golob currently is “actively involved in planning and care for patients with COVID-19.” Id.
 Exhibit 17 is the declaration of Andrew Lorenzen-Strait [hereafter, “Lorenzen-Strait Decl.”], an expert on ICE enforcement and removal policies and practices, who is an Executive Director for Health and Wellness at Lutheran Social Services of the National Capital Area overseeing migrant support services. Lorenzen-Strait Decl. ¶ 1. Mr. Lorenzen-Strait, who previously worked at ICE in various roles, including most recently as the Deputy Assistant Director for Custody Programs until May 2019, oversaw health and welfare programs and services in immigration detention, including innovative programs to serve vulnerable populations. Id. His relevant responsibilities included “overseeing field level enforcement decisions in cases involving parents as primary caretakers, and monitoring compliance with [Enforcement and Removal Operations] processes and standards.” Id. at ¶ 2.
1 All references to numbered Exhibits (e.g., Exhibit 1, Exhibit 2, etc.) refer to the Exhibits attached to the Declaration of Witold J. Walczak dated March 24, 2020 (Dkt. No. 2). References to TRO-Exhibits (e.g., TRO-Exhibit 1, TRO-Exhibit) are being separately filed with this motion attached to the Declaration of Witold J. Walczak dated March 25, 2020.
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I. COVID-19 Poses Grave Risk of Serious Illness or Death to Older Adults and Those with Certain Underlying Medical Conditions. According to the World Health Organization, as of March 24, 2020, there are
334,981 confirmed cases of COVID-19 worldwide and 14,652 confirmed deaths.2 In the United States alone, there are 41,000 confirmed cases and 479 confirmed deaths. Amon Decl. ¶ 5. These numbers are growing exponentially. See id.
People over the age of 45 and those with certain medical conditions face a greater risk of serious illness or death from COVID-19. Golob Decl. ¶ 3; Amon Decl. ¶¶ 7-10. The medical conditions that increase the risk of serious complications from COVID-19 include lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, and developmental delay. Golob Decl. ¶ 3; Amon Decl. ¶¶ 7-10. All of the Plaintiffs have one or more of these conditions and are at an increased risk of developing serious complications or dying from COVID-19, regardless of their age. Amon Decl. ¶¶ 11-22.
2 See TRO-Ex. 1, Coronavirus disease (COVID-19) Pandemic, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited Mar. 24, 2020).
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In many people, COVID-19 causes fever, cough, and shortness of breath. But for people over the age of 453 or with medical conditions that increase the risk of serious COVID-19 infection, shortness of breath can be severe. Golob Decl. ¶ 5. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID-19 may also cause inflammation of the heart muscle. Id. at ¶¶ 8-9. This is known as myocarditis; it can affect the heart muscle and electrical system, reducing the heart’s ability to pump. Id. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. Id. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id. These complications can develop at an alarming pace. Id. at ¶¶ 6, 8. Patients can show the first symptoms of infection within two days after exposure, and their condition can seriously deteriorate in five days or sooner. Id.
3 Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Golob Decl. ¶ 5.
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The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 than from influenza. Id. at ¶ 4. According to recent estimates, the fatality rate of people with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems. Id. For people in the highest risk populations, the fatality rate of COVID-19 is about 15 percent. Id.
Patients in high-risk categories who do not die from COVID-19 should expect a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity. Id.
There is no vaccine against COVID-19 and there is no known medication to prevent or treat COVID-19. Id. at ¶ 10. The only known effective measures to reduce the risk for vulnerable people from injury or death from COVID-19 are to prevent them from being infected in the first place. Id. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting vulnerable people from COVID-19. Id.
Projections by the CDC indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without
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effective public health intervention, with as many as 1.5 million deaths in the most severe projections. Id. at ¶ 11. II. COVID-19 Is Overwhelming Local Healthcare Systems and Rural Health
Systems are Particularly Vulnerable Most people in higher risk categories who contract COVID-19 need advanced
support. Golob Decl. ¶ 8. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Id. The extensive degree of support that COVID-19 patients need can quickly exceed local health care resources. Id. When healthcare systems are overwhelmed, doctors and public health authorities are inevitably left to allocate scarce resources about who receives care. III. People Detained at the ICE Facilities Are at Increased Risk of COVID-19.
York County Prison is located in York, Pennsylvania. Pike County Correctional Facility is located in Lords Valley, PA. Clinton County Correctional Facility is located in McElhattan, PA. As of March 24, 2020, there were 851 confirmed cases of COVID-19 and seven COVID-19-related deaths in Pennsylvania (including eighteen in York County and four in Pike County).4 The coronavirus

4 TRO-Ex. 2, Coronavirus (COVID-19), Pennsylvania Department of Health,

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Coronavirus.aspx

(last

visited Mar. 24, 2020).

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outbreak has resulted in unprecedented health measures to facilitate and enforce social distancing, including in Pennsylvania. Amon Decl. ¶¶ 24-28. It is highly likely that COVID-19 will reach the ICE Facilities. See Amon Decl. ¶¶ 29-48. Sadly, COVID-19 may already be in the ICE Facilities; two Plaintiffs, Rodolfo Agustín Juarez Juarez and Bharatkumar G. Thakker, have exhibited symptoms consistent with COVID-19, but as of yesterday, neither of them had been tested or quarantined. Amon Decl. ¶¶ 12, 15; Ex. 8, Declaration of Rodolfo Agustín Juarez Juarez ¶¶ 6, 11 [hereafter “Juarez Decl.”]; Ex. 3, Declaration of Bharatkumar G. Thakker at ¶18 [hereafter “Thakker Decl.”]
Vulnerable people who live in institutional settings (such as immigration detention centers) are at grave risk of severe illness and death if infected by COVID19. See Amon Decl. ¶¶ 29-35, 42-50. This is because the disease is transmitted mainly between people who are in close contact with one another (within about 6 feet) via respiratory droplets produced when an infected person coughs or sneezes. Id. at ¶¶23-24. Immigration detention facilities are “congregate settings,” or places where people live or sleep in close proximity. Infectious diseases that are communicated by air or touch are more likely to spread in these environments. This presents “ideal incubation conditions” for the rapid spread of COVID-19 if and when it is introduced into a facility. See Amon Decl. ¶¶ 28, 30. Enclosed group environments, like cruise ships or nursing homes, have become the sites for the most
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severe outbreaks of COVID-19. Amon Decl. ¶¶ 28, 30. The highest known personto-person transmission rate for COVID-19 took place in a skilled nursing home facility in Kirkland, Washington, and on afflicted cruise ships in Japan and off the coast of California. Golob Decl. ¶12.
The conditions of immigration detention facilities pose a heightened public health risk for the spread of COVID-19 that is even greater than in non-carceral institutions, like cruise ships and nursing homes. Amon Decl. ¶ 29. Immigration detention facilities have even greater risk of infectious spread because of crowding, the proportion of vulnerable people detained, security-related restrictions, and often scant medical care resources. Id. at ¶ 30. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID19. Id. They may be unable to maintain the recommended distance of six feet from others, and may share or touch objects used by others. Id. at ¶¶ 23, 30-35, 47. Toilets, sinks, and showers are shared, without disinfection between each use. Id. at ¶ 30. Food preparation and service is communal with little opportunity for surface disinfection. Id. Staff arrive and leave on a shift basis, and there is limited ability to adequately screen staff for new, asymptomatic infection. Id. Many immigration detention facilities lack adequate medical infrastructure to address the spread of infectious disease and treatment of people most vulnerable to illness in detention. Id.
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Declarations from Plaintiffs and lawyers familiar with the ICE Facilities attest to severely overcrowded living conditions where recommended social distancing is impossible. For example, immigrants at York are generally housed in dormitory style blocks, with a capacity of about 60 people per block, where the space is roughly divided in half between communal living space and sleeping bunks. Ex. 18, Declaration of Andrew Baranoski ¶ 8 [hereafter “Baranoski Decl.”]. Detainees eat meals, congregate, make phone calls and watch television in the open communal space. Id. The population at York has ranged from about 400 to nearly 800 over the last year. Id. at ¶ 6. Detainees at York also face crowded, close conditions, where they are divided into pods and packed “60 people to a pod.” Ruiz Decl. 7; see also Amon Decl. 32. Similarly at Clinton, inmate bunks are often not more than two feet apart, literally less than an arm’s-length, with 72 people in a dormitory. Ex. 10, Declaration of Henry Pratt ¶ 6 [hereafter “Pratt Decl.”]. Likewise at Pike, 48 men reside in a housing block, with eight-by-ten or twelve foot cells shared by three people with a bunk bed, a single bed, sink, and shower also occupying the space. Thakker Decl. ¶ 11. Inmates at Pike are usually within two feet of someone else, even in the common area where benches seat about 6 men each without extra space. See id. at ¶ 12; Ex. 13, Declaration of Agus Prajoga ¶ 8 [hereafter “Prajoga Decl.”].
Delivery of meals and opportunities for necessary hygiene are also grossly deficient at the ICE Facilities. The Clinton facility is reported to have bugs, rats,
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mice, chronically broken laundry facilities, and only four sets of sinks/showers for 72 men. Pratt Decl. ¶¶ 9-11. Similarly, Pike inmates must buy their own soap, are not given hand sanitizer or even adequate instructions about preventing virus spread and are forced to share cleaning supplies with the entire block. Thakker Decl. ¶ 14; Prajoga Decl. ¶ 9. At York, not even the medical staff wear gloves. Ex. 11, Declaration of Jean Herdy Christy Augustin ¶ 14 [hereafter “Augustin Decl.”]. Correctional officers at York have been overheard saying that they actually “hope that we get corona, so we can get it over with.” Augustin Decl. ¶ 14. At meal times, inmates at York are herded three times a day into the dining area, sitting at small tables of four people each, leaving maybe three feet of space between people. Id. at ¶ 17.
While Defendants are likely to argue that they have adequate protocols in place to address the epidemic, in a March 15 guidance ICE acknowledged the risks of coronavirus infection and COVID-19 to those in civil detention.5 Apparently intended as a response to these acknowledged risks, the guidance is impractical and does not reflect the reality of the overcrowded conditions at the ICE Facilities. Although the ICE guidance suggests that “Detainees who meet CDC criteria for
5 See TRO-Ex. 3, ICE Guidance on COVID-19 (“ICE Guidance”), U.S. Immigration & Customs Enforcement, available at www.ice.gov/covid19 [hereafter, “ICE COVID-19 Guidance”].
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epidemiologic risk of exposure to COVID-19 are housed separately from the general population,” the reality is that this practice is not being implemented. Amon Decl. ¶¶ 45-48. Close quarters, lack of testing, and inability to enforce social distancing are an urgent problem. Id.
Similarly, although the ICE guidance suggests it will “place 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,” Plaintiff’s medical expert, Dr. Amon, concluded that cohorting vulnerable detainees together increases the risk of coronavirus infection and COVID-19. Amon Decl. ¶¶ 44–45. Tellingly, the ICE guidance acknowledges that the options to safeguard vulnerable detainees “depend on available space.” Id. at ¶ 44. The reality and horror unfolding at the three prisons shows that the ICE Facilities do not have that space, and therefore are incapable of protecting Plaintiffs and other detainees from the risks of COVID-19.
Given the shortage of COVID-19 testing in the United States, it is likely that detention facilities are unable to conduct aggressive, widespread testing to identify all positive cases of COVID-19. See id. at ¶¶ 42-48. For this reason, a lack of proven cases of COVID-19 in context where testing is unavailable is functionally meaningless to determine whether there is a risk of COVID-19 transmission in an
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institution. Golob Decl. ¶ 7. Even so, the risk is already present: an ICE detainee in Bergen County Jail tested positive for COVID-19.6 IV. Continued ICE Detention is Unsafe for Those Vulnerable to COVID-19.
Release from detention is the only option to protect vulnerable adults from COVID-19 because of the above-described conditions at the ICE Facilities. That fact has been recognized by public health experts and prison administrators alike. Dr. Amon has concluded that “the release of individuals who can be considered at high-risk of severe disease if infected with COVID-19 is a key part of a risk mitigation strategy.” Amon Decl. ¶ 48. For that reason, Dr. Amon recommends the “release of high risk people from detention” as a priority and also consider releasing even those not identified as high risk because doing so will reduce the number of individuals in the facility, facilitating social distancing. Amon Decl. ¶¶ 48-49. In the event that vulnerable detainees have been exposed to COVID-19, Dr. Amon recommends testing where possible and the release of detainees to a quarantine setting outside of detention in coordination with local health authorities. Id. at ¶ 50.
Other public officials have likewise called for the release of eligible individuals from detention. The former Acting Director of ICE, John Sandweg, has
6 TRO-Ex. 4, ICE detainee tests positive for COVID-19 at Bergen County Jail, U.S. Immigration & Customs Enforcement (Mar. 24, 2020), https://www.ice.gov/news/releases/ice-detainee-tests-positive-covid-19-bergencounty-jail.
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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.”7 TRO-Ex. 6, See also J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, Pro Publica (Mar. 20, 2020), https://bit.ly/3bqm2VT.
For this reason, courts around the country have ordered the release of people from detention and prison because of COVID-19. See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”). See also Stephens, 2020 WL 1295155, at *3 (explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); In re Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, at *1-3 (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that
7 See TRO-Ex. 5, John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ ideas/archive/2020/03/release-ice-detainees/608536/.
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facility has preparedness plan in place and no cases have been confirmed); Barkman, 2020 U.S. Dist. LEXIS 45628, at *10-11 (modifying intermittent confinement as a condition of probation due to the COVID-19 pandemic); United States v. Raihan, No. 20-cr-68, Dkt. No. 20 at 10:12-19 (E.D.N.Y. Mar. 12, 2020) (deciding to continue a criminal defendant on pretrial release rather than remand to the Metropolitan Detention Center in part due to risk of COVID-19).
Some courts have started to take more sweeping action. The New Jersey Supreme Court has ordered the release of most county jail detainees. See TRO-Ex. 7, Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020), available at https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF. Similarly, the Chief Justice of the Montana Supreme Court, in a March 20, 2020 letter, urged Montana judges to “review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses.” TRO-Ex. 8, Chief Justice Mike McGrath, Letter to Montana Courts of Limited Jurisdiction (Mar. 20, 2020), available at https://courts.mt.gov/Portals/189/virus/ Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=202003-20-115517-333. V. Plaintiffs Must Be Released from Custody Because They are Vulnerable
to Serious Illness or Death If Infected by COVID-19. All Plaintiffs have underlying medical conditions or are of an age that increases their risk of serious illness or death if exposed to COVID-19. Amon Decl.
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¶¶ 11-22. They are detained at the ICE Facilities as they await adjudication of their civil immigration cases.
Petitioner-Plaintiff Bharatkumar G. Thakker is a 65-year-old male citizen of India who has been detained by ICE at Pike County Correctional Facility for 27 months.8 He suffers from several serious health conditions, including respiratory problems, declining kidney function, high blood pressure, high cholesterol, and a history of seizures. During this detention, he has twice required hospitalization. His age and serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Two days ago, Mr. Thakker’s cell mate, who sleeps three feet away, started coughing, had chills and felt achy. As of March 23, Mr. Thakker also began coughing and feeling dizzy. The prison has neither tested nor quarantined either man. See Thakker Decl. ¶ 18.
Petitioner-Plaintiff Adebodun Adebomi Idowu is a 57-year-old man from Nigeria who is detained by ICE at Clinton County Correctional Facility.9 Mr. Idowu suffers from Type II diabetes, high blood pressure, and high cholesterol. He receives medication for these conditions, including insulin and metformin, and has been hospitalized three times because the facility failed to provide him with insulin. As a
8 This Court recently decided Mr. Thakker’s petition for writ of habeas corpus. See Thakker v. Lowe, 1:19-cv-00664 (M.D. Pa.). 9 Mr. Idowu currently has a writ of habeas corpus pending before this Court. See Idowu v. Clinton Cty. Corr. Facility, No. 1:20-cv-00146 (M.D. Pa.).
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consequence of his age and health conditions, he is at a high risk of severe illness or death if he contracts COVID-19. See Ex. 4 Declaration of Adebodun Adebomi Idowu ¶¶ 3-9 [hereafter “Idowu Decl.”].
Petitioner-Plaintiff Courtney Stubbs is a 52-year-old male citizen of Jamaica who has been detained by ICE at Pike County Correctional Facility. Mr. Stubbs receives treatment for multiple medical conditions. He is a kidney-transplant patient who receives a regimen of medications, suffers from Type II diabetes, and has heart stents. These serious maladies and his age place Mr. Stubbs at a high risk of severe illness or death if he contracts COVID-19. See Ex. 5, Declaration of Courtney Stubbs ¶¶ 3-4, 8-9 [hereafter “Stubbs Decl.”]; Ex. 6, Declaration of Danielle Arizzi ¶¶ 3-4 [hereafter “Arizzi Decl.”].
Petitioner-Plaintiff Meiling Lin is a 45-year-old female citizen of China who is detained by ICE at York County Prison. Ms. Lin has chronic hepatitis B. She also suffers from severe chronic pain, liver disease, and other medical complications as a result of her forced sterilization surgery in China. As a consequence of her health conditions, she is at a high risk of severe illness or death if she contracts COVID-19. See Ex. 9, Declaration of Meiling Lin ¶¶ 4-5, 11 [hereafter “Lin Decl.”].
Petitioner-Plaintiff Jean H.C. Augustin is a 34-year-old male citizen of Haiti who is detained by ICE at York County Prison. He suffers from diabetes, high blood pressure, chronic anemia, and nerve issues. He also was the victim of a gunshot
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wound that caused permanent partial disability, and suffers myriad health issues stemming from the injury. During his detention he has required multiple hospitalizations. As a consequence of his health conditions, coupled with the fact that he is responsible for processing new detainees every day in admissions, he is at a high risk of severe illness or death if he contracts COVID-19. See Augustin Decl. ¶¶ 13, 15, 22.
Petitioner-Plaintiff Rodolfo Agustín Juarez Juarez is a 21-year-old male citizen of El Salvador who is detained by ICE at York County Prison. Mr. Juarez suffers from diabetes. He has had a fever, persistent cough, and trouble breathing for the past week. The facility has told him it cannot test him for COVID-19 because it does not have tests. Mr. Juarez is at a high risk of severe illness or death if he contracts or has contracted COVID-19 because of his serious health conditions. See Juarez Decl. ¶¶ 6-7, 10-11.
Petitioner-Plaintiff Catalino Domingo Gomez Lopez is a 51-year-old male citizen of Guatemalan who is detained by ICE at York County Prison. Since being detained in November 2018, Mr. Gomez Lopez has had the flu four times. Most recently, in February of 2020, he was so ill that he was coughing blood. He has not been tested for COVID-19. Mr. Gomez Lopez is at a high risk of severe illness or death if he contracts or has contracted COVID-19 because of his age and serious
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health conditions. See Ex. 15, Declaration of Catalino Domingo Gomez Lopez ¶¶ 45 [hereafter “Lopez Decl.”].
Petitioner-Plaintiff Rigoberto Gomez Hernandez is a 52-year-old male Mexican national who is detained by ICE at Pike County Prison. Mr. Gomez Hernandez has multiple chronic health issues. He is diabetic and currently receiving treatment for an ulcer. As a consequence of his age and health conditions, Mr. Gomez Hernandez is at a high risk of severe illness or death if he contracts COVID19. See Ex. 7, Declaration of Rigoberto Gomez Hernandez ¶¶ 3-5 [hereafter “Hernandez Decl.”].
Petitioner-Plaintiff Henry Pratt is a 50-year-old male citizen of Liberia. He is detained by ICE at Clinton County Correctional Facility. Mr. Pratt suffers from Type II diabetes and high blood pressure, for which he receives medication. Mr. Pratt is at a high risk of severe illness or death if he contracts or COVID-19 because of his age and serious health conditions.10 See Pratt Decl. ¶ 3.
Petitioner-Plaintiff Mayowa Abayomi Oyediran is a forty-year-old male citizen of Nigeria who is detained by ICE at York County Prison. Mr. Oyediran has severe asthma and has an infection in his lungs. Yet while in detention, he has not
10 Mr. Pratt currently has a writ of habeas corpus pending before this Court, although the last docket entry is from June 10, 2019. See Pratt v. Doll, 3:19-cv-00342-RDMCA (M.D. Pa.).
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been given an inhaler or any other kind of treatment for his asthma. He has not been treated for the lung infection either. As a consequence of his age and health conditions, Mr. Oyediran is at a high risk of severe illness or death if he contracts COVID-19. See Oyediran Decl. ¶¶ 4-9.
Petitioner-Plaintiff Mansyur is a 41-year-old male citizen of Indonesia. He is detained by ICE at Pike County Prison. Mr. Mansyur has diabetes, thyroid issues, and high blood pressure. Mr. Mansyur is at high risk of severe illness or death if he contracts COVID-19 because of his serious health conditions. See Ex. 14, Declaration of Mansyur ¶¶ 3-5 [hereafter “Mansyur Decl.”].
Petitioner-Plaintiff Agus Prajoga is a 48-year-old male citizen of Indonesia who is detained by ICE at Pike County Prison. Mr. Prajoga has diabetes, cholesterol, high blood pressure, and hepatitis B. As a consequence of his age and serious health conditions, Mr. Prajoga is at a high risk of severe illness or death if he contracts COVID-19. See Prajoga Decl. ¶¶ 3-5.
Petitioner-Plaintiff Dexter Anthony Hillocks is a 54-year-old male lawful permanent resident from Trinidad & Tobago. He is detained at Pike County Correctional Facility. Mr. Hillocks suffers serious health problems, including diabetes, high blood pressure, high cholesterol, and anemia. He also was recently diagnosed with leukemia. Mr. Hillocks is at high risk of severe illness or death
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because of his age and serious health conditions if he contracts COVID-19. See Ex. 16, Declaration of Dexter Anthony Hillocks ¶¶ 5-7, 9 [hereafter “Hillocks Decl.”]. VI. Defendants are Aware that Releasing Detainees is the only Viable Option
to Protect Vulnerable Individuals from COVID-19. In addition to the chorus of public health experts, the Defendants have been explicitly informed by their own medical advisors of the dangers of continuing to detain inmates in light of COVID-19. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID19 with the agency. These experts warned of the danger of rapid spread of COVID19 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.”11 VII. ICE has Discretion to Release Inmates for Medical Reasons ICE has a track record of releasing vulnerable detainees like Plaintiffs, especially for medical reasons. Ex. 17, Declaration of Andrew Lorenzen-Strait
11 See TRO-Ex. 9, Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH, Letter to House and Senate Committees on Homeland Security (Mar. 19, 2020), available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020-Letter-to-Congress.pdf.
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[hereafter “Lorenzen-Strait Decl.”], ¶¶ 4–5. Under ICE policies, individuals who did not yet have a serious physical illness but were vulnerable to medical harm were considered for release. When deciding whether to release medically-vulnerable detainees from custody, ICE considered whether the detainees had any physical or mental condition that would make them more susceptible to medical harm while in ICE custody. This could include individuals who were very old. See LorenzenStrait Decl. ¶ 7.12
Nor is detention required for ICE to achieve its goals. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and inperson reporting to supervise participants. A government-contracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings. See Lorenzen-Strait Decl. ¶ 15.
12 Plaintiffs do not argue that they can force ICE to exercise discretionary authority to release them. Rather, the point is that historically, ICE practice has been to release at-risk detainees.
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LEGAL STANDARD On a motion for a preliminary injunction or temporary restraining order, the plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Cerro Fabricated Prod. LLC v. Solanick, 300 F. Supp. 3d 632, 647 n.5 (M.D. Pa. 2018) (“The standard for granting a preliminary injunction under Rule 65 is the same as that for issuing a TRO.”). A motion for a temporary restraining order requires the Court to “engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests.” Miller v. Skumanick, 605 F. Supp. 2d 634, 641 (M.D. Pa. 2009), aff’d sub nom. Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010). Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). Immigrant detainees, even those with prior criminal convictions, are civil detainees entitled to the same Fifth and Fourteenth Amendment due process protections as any other pretrial detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019). Due process rights
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for civil detainees mean that they are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). As a result, conditions that would violate the Eighth Amendment are more than enough to also violate a civil detainee’s due process rights. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that “the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
Courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners [and] . . . may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown, 563 U.S. at 511 (internal citations and quotations omitted).
ARGUMENT I. Plaintiffs Meet their Burden to Show the Need For A Temporary
Restraining Order and Preliminary Injunction. Because there is no vaccine or cure for COVID-19, the only way to protect the Plaintiffs’ constitutional due process rights is to immediately release them from
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detention so they can escape the onslaught of COVID-19 before it strikes. Detention conditions that expose people to infectious disease are constitutionally intolerable even for convicted persons, let alone civil detainees entitled to due process protections.
Immediate injunctive relief is necessary because the danger here—vulnerable people with underlying health conditions condemned to prolonged illness and potentially death—is the quintessential irreparable harm. There is also an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce strain on overwhelmed health systems. And, in light of the global COVID-19 pandemic, the balance of equities weighs heavily in favor of these older, vulnerable detainees, who must be released to self-isolate, and against Defendants’ interest in indefinite confinement of Plaintiffs in life-threatening conditions. The Court should order the Plaintiffs released from custody.
A. Plaintiffs Are Likely to Succeed on the Merits of Establishing a Constitutional Violation. 1. Plaintiffs’ Continued Detention at the ICE Facilities Violates Their Due Process Rights.
Plaintiffs are likely to establish a violation of their constitutional Due Process rights through conditions of confinement that expose them to the serious risks associated with COVID-19. “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of
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confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” Sharkey, 928 F.3d at 307 (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). Put differently, to assess whether a condition constitutes impermissible punishment, “[w]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232 (internal citations and quotation marks omitted). Conditions must be assessed in their totality. Id. at 233.
Here, Plaintiffs are detained in conditions without adequate CDC-mandated social distancing, dramatically increasing the likelihood they will contract COVID19 and fall ill. Plaintiffs and declarants describe overcrowded conditions, including a minimum of fifty detainees sleeping in one dormitory or housing unit with bunk beds positioned so close that people sleep just arm’s length apart. See Pratt Decl. ¶¶ 6-7; Augustin Decl. ¶ 16; Idowu Decl. ¶ 11; Juarez Decl.¶ 13; Thacker Decl. ¶ 11; Stubbs Decl. ¶ 13; Ruiz Decl. ¶ 7. Meals are taken at packed tables placed close together, seated shoulder to shoulder, Idowu Decl. ¶ 12; Augustin Decl. ¶ 17, leading some detainees to eat in their beds, Pratt Decl. ¶ 8. York and Clinton have communal bathrooms with limited sinks and showers, which are not cleaned with frequency. Augustin Decl. ¶ 20; Lin Decl. ¶ 16.
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Plaintiffs also are detained in unhygienic conditions. Detainees at York and Pike have no access to hand sanitizer or disinfectants, Augustin Decl. ¶ 21; Prajog Decl. ¶ 9; Mansyur Decl. ¶ 10; Juarez Decl. ¶ 16, while detainees at Pike are forced to share a small daily soap ration among cellmates, Stubbs Decl. ¶ 16. When detainees are forced to carry out cleaning duties, they are not given any protective gear, and thus “are being exposed to bodily fluids.” Ruiz Decl. ¶ 9; see also Idowu ¶ 13. And, despite the looming threat of COVID-19, many medical staff and correctional officers do not wear gloves or masks in the facilities. Augustin Decl. ¶ 14; Juarez Decl. ¶ 17; Idowu Decl. ¶ 14; Lopez Decl. ¶ 12. This is just the tip of the iceberg of the unsanitary conditions Plaintiffs face on a daily basis.
Unquestionably, in the face of ample medical evidence that social distancing is the only way to avoid COVID-19, Amon Decl. ¶¶ 10, 23, 24, 30, 47, keeping atrisk Plaintiffs detained in such close proximity to one another and without the sanitation necessary to combat the spread of the virus serves no legitimate purpose. Nor is detention under these circumstances rationally related to the enforcement of immigration laws.13 See Brown v. May, No. 2:16-cv-01973, 2019 WL 5445923, at *3-4 (E.D. Pa. Oct. 23, 2019) (exposing plaintiff to “limited space in the cells, blue
13 ICE has a number of tools available—beyond physical detention—to meet its enforcement goals, as demonstrated by the enforcement measures already used when individuals with serious medical conditions are released from detention. LorenzenStrait Decl. ¶¶ 14-15. The situation presented by COVID-19 is no different.
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boats [plastic sleeping shells] on the floor, uncovered toilets, and rodent and insect infestations” was “not rationally related to the interest in managing an overcrowded prison”).
Courts in this Circuit have repeatedly found such “unsanitary, unsafe, or otherwise inadequate conditions” sufficient to state a Due Process claim. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (allegations of exposure to “extreme heat combined with lack of potable water, as well as generally unsanitary conditions” sufficient to state a conditions-of-confinement claim under the Fourteenth Amendment).14 Under these circumstances, Plaintiffs’ conditions of confinement violate Plaintiffs’ due process rights.
14 See also Hargis v. Atlantic Cty. Justice Facility, No. 10-1006, 2010 WL 1999303, at *10 (D.N.J. May 18, 2010) (cell conditions where plaintiff was frequently splashed with urine, feces, and toilet water while sleeping in a small cell with two inmates were sufficient to suggest a due process violation); Wagner v. County of Montgomery, No. 10-2513, 2014 WL 4384493, at *4 (E.D. Pa. Sept. 4, 2014) (sleeping in a quadruple bunk next to a toilet for just under a year, leading to physical altercations with cellmates, stated a plausible due process claim); Inmates of Northumberland Cty. Prison v. Reish, No. 08-cv-0345, 2009 WL 8670860, at *8 (M.D. Pa. Mar. 17, 2006) (triple-celling exacerbated conditions including “poor ventilation, extreme seasonal temperatures, regular vermin infestation, fire hazards, and access to physical and psychological medical care”).
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2. Defendants’ Deliberate Indifference to Plaintiffs’ Health and Safety Violates Even the Stricter Eighth Amendment Standards.
As noted above, civil detainees can establish a due process violation by demonstrating that the challenged conditions or conduct violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Here, the Plaintiffs are likely to establish that Defendants violated Plaintiffs’ constitutional rights by condemning them to living conditions that expose them to infectious disease with life-threatening potential complications, warranting a Court order requiring Plaintiffs’ immediate release.
Plaintiffs’ current conditions of confinement at the ICE facilities, with COVID-19 tearing through the United States and its places of detention, are unconstitutional. The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody. The government violates the Constitution when it “fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” for those in custody. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989); see also Union Cty. Jail Inmates v. Di Buono, 713 F.2d 984, 999, 1008 (3d Cir. 1983) (explaining that conditions are cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” such as the “necessity” of “habitable
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shelter,” as measured under “contemporary standards of decency” (internal quotation marks omitted)).
To prevail on a claim that conditions of confinement violate the Eighth Amendment, a plaintiff must meet two requirements: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Leaving those in custody in the path of infectious disease violates the Eighth Amendment. The Supreme Court has recognized that the government violates the Eighth Amendment when it crowds prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). This Court has likewise recognized that a plaintiff states an Eighth Amendment claim when forced into living conditions where infectious disease is rampant. See Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681, at *13 (M.D. Pa. May 11, 2007), report and recommendation adopted, 2007 WL 9718672 (M.D. Pa. June 1, 2007) (allowing conditions of confinement claim to proceed after the plaintiff was placed in a cell where he was exposed to and developed Methicillin-resistant Staphylococcus aureus (MRSA)).
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Here, there is no question that the risk posed by COVID-19 is “serious” and that Defendants are being deliberately indifferent to that risk. The test for the “seriousness” of a medical need is flexible, and is satisfied either by expert medical testimony or when it is “so obvious that a lay person would easily recognize the necessity for a doctor’s attention.” Hinerman v. Karnes, No. 14-0408, 2015 WL 268761, at *3 (M.D. Pa. Jan. 21, 2015). While a layperson would surely recognize the risks posed by COVID-19 under the circumstances, Plaintiffs have submitted expert evidence demonstrating the seriousness of the risk COVID-19 poses to Plaintiffs if they remain in the ICE Facilities. COVID-19 is highly contagious and can cause severe health problems and death, especially in vulnerable persons. See supra Factual Background, Part I. Moreover, there are already reported cases around the country of contagion inside of prisons and detention facilities. See supra Factual Background, Part III. The Plaintiffs in this case are at specific and heightened risk because of their age and underlying health conditions. See supra Factual Background, Part V.
Defendants are also aware of the serious risks that COVID-19 poses to detained populations. First, the Plaintiffs themselves have raised concerns at the ICE Facilities about the risks they face from COVID-19. Thakker Decl. ¶ 13; see also Pratt Decl. ¶¶ 12-15. Advocacy groups have also notified Defendants about the threat posed by COVID-19 in ICE detention centers. See, e.g., Ex. 20, Witold
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Walczak, Vanessa Stine, and Muneeba Talukder of the ACLU, March 13, 2020 Letter to Defendant Simona Flores-Lund. ICE has also released guidance showing that it is aware of the spread of COVID-19, even if its procedures plainly fail to address the threat that it poses. See Amon Decl. ¶¶ 43-46.
In addition to Defendants’ actual knowledge of the risk, the Plaintiffs can establish that Defendants are aware of and deliberately indifferent to the risk of COVID-19 through circumstantial evidence that the risk is obvious. The obviousness of the risk the Plaintiffs face, by itself, is enough to allow a factfinder to conclude that Defendants know of the risk. Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (citing Farmer, 511 U.S. at 842). Put another way, deliberate indifference may be shown through circumstantial evidence. Farmer, 511 U.S. at 842 (explaining that “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”).
Here, there is overwhelming evidence that Defendants are aware of this obvious risk. Medical experts for the Department of Homeland Security have specifically identified the risk of COVID-19 spreading to ICE detention centers.15
15 See TRO-Ex. 9, Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH, Letter to House and Senate Committees on Homeland Security (Mar. 19, 2020), available at
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An ICE detainee in Bergen County Jail has tested positive for COVID-19.16
Immigration courts in both New York and New Jersey were closed due to confirmed
cases.17 John Sandweg, a former acting director of ICE, has written publicly about
the need to release nonviolent detainees because ICE detention centers “are
extremely susceptible to outbreaks of infectious diseases” and “preventing the virus
from being introduced into these facilities is impossible.”18 Prisons and jails around
the country are already releasing non-violent detainees because the risk of contagion
is overwhelming.19 Increasingly, the risk to detainees is obvious to Courts as well.
https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020-Letter-to-Congress.pdf. 16 TRO-Ex. 4, ICE detainee tests positive for COVID-19 at Bergen County Jail, U.S. Immigration & Customs Enforcement (Mar. 24, 2020), https://www.ice.gov/news/releases/ice-detainee-tests-positive-covid-19-bergencounty-jail. 17 TRO-Ex. 10, Priscilla DeGregory, Coronavirus shuts down some NYC and NJ immigration courts, New York Post (Mar. 24, 2020), https://nypost.com/2020/03/24/coronavirus-shuts-down-some-nyc-and-njimmigration-courts/. 18 See TRO-Ex. 5, John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/. 19 See TRO-Ex. 7, Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020) (ordering release of most county jail detainees), available at https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF; United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (concluding that the “unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic” constituted compelling circumstances to adjust a defendant’s bail conditions and release him, even though there was “not yet a known outbreak among the jail and prison populations” when the order was issued).
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See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (Order); Stephens, 2020 WL 1295155; Barkman, 2020 U.S. Dist. LEXIS 45628; Fellela, 2020 U.S. Dist. LEXIS 49198; In re Extradition of Alejandro Toledo Manrique, 2020 WL 1307109; Raihan, No. 20-cr-68, Dkt. No. 20.
In short, the evidence shows that COVID-19 poses a serious risk and that Defendants are aware of the risk both from direct notice and from circumstantial evidence that the risk is entirely obvious. Defendants’ failure to release detainees from these intolerable conditions is deliberate indifference to that risk, in violation of the Plaintiffs’ constitutional rights. See Hinerman, 2015 WL 268761, at *4 (“A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of harm and fails to take reasonable steps to avoid such harm.”).
The evidence is overwhelming that the only way to abate the substantial risk of serious harm to Plaintiffs is immediate release from detention. Public health authorities agree that the only way to protect vulnerable individuals from COVID19 is to practice “social distancing”—i.e., generally self-isolating and keeping a minimum distance from others— and improved hygiene practices that are utterly impossible in the ICE Facilities. See Amon. Decl. ¶¶ 23-24, 30, 32-34, 45. Against the mountain of evidence that social distancing is the only way to stem the tide of COVID-19, Defendants have failed to take the steps necessary to remove barriers
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that prevent Plaintiffs from proactively engaging in social distancing, self-isolation, and appropriate hygiene.
The deliberate indifference of Defendants is therefore “manifest,” for the refusal to protect Plaintiffs exposes them to “undue suffering or the threat of tangible residual injury.” Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 34647 (3d Cir. 1987) (internal quotation marks omitted); Brigaerts v. Cardoza, 952 F.2d 1399 (9th Cir. 1992) (“Repeated exposure to contagious diseases may violate the Eighth amendment if prison officials show deliberate indifference to serious medical needs.”).
B. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable Harm.
Plaintiffs have moved for a temporary restraining order and preliminary injunction because the difference of even just a few days may be the difference between life and death. Cases of COVID-19 have increased exponentially in a matter of weeks. See supra Factual Background, Part I. COVID-19 has already spread in detention facilities around the country.
Given the deadliness of the disease and the country’s over-taxed medical system, there is a real possibility that absent immediate relief from the Court, Plaintiffs will be infected with COVID-19, and possibly die or suffer long-term health consequences as a result. See supra Factual Background, Parts I, III. Plaintiffs are older adults or people with pre-existing medical conditions that
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increase the likelihood of severe illness or death if they contract COVID-19. See supra Factual Background, Part V. Even for those infected who survive, there may be a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity. See supra Factual Background, Part I.
These life-and-death stakes are sufficient to establish a likelihood of irreparable harm in support of injunctive relief. Even the failure to test for a disease has been sufficient to support a finding of irreparable harm. See Boone v. Brown, No. 05-0750, 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., No. 90-7497, 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (correctional officers have an affirmative obligation to protect prisoners from infectious disease).
The risks here are even more extreme, and the ICE Facilities’ ongoing failure to provide conditions of basic health and safety risks irreparable harm to the Plaintiffs. See Padilla v. U.S. Immigration & Customs Enforcement, 387 F. Supp. 3d 1219, 1231 (W.D. Wash. 2019) (recognizing that “substandard physical conditions, [and] low standards of medical care” in immigration detention constitute
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irreparable harm justifying injunctive relief). The Constitution does not require that Plaintiffs may obtain a remedy only after they have been exposed to coronavirus, developed COVID-19, and suffered its grave consequences. As the Supreme Court has explained, “a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery.” Helling v. McKinney, 509 U.S. 25, 33 (1993).
C. There is a Strong Public Interest in Minimizing the Spread of COVID-19 through Social Distancing and Hygiene Practices that are Impossible at the ICE Facilities.
“It is always in the public interest to prevent the violation of a party’s constitutional rights.” Buck v. Stankovic, 485 F. Supp. 2d 576, 586-587 (M.D. Pa. 2007) (internal quotation marks and citation omitted). In this case, however, the public interest in minimizing the spread of COVID-19 is overwhelming and nearly impossible to overstate.
First, the disease is highly contagious and has no vaccine or cure, meaning that each new infection may result in still more individuals becoming infected. See supra Factual Background, Part I. Healthcare professionals have accordingly—and nearly unanimously—agreed that the most critical actions that can be taken are preventive measures such as self-isolating, maintaining a distance of six feet from other persons, and frequent disinfection. See id. These measures are simply not possible in the conditions at the ICE Facilities, as detailed above. Even with the
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best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. Amon. Decl. ¶ 48. And because prisons and other detention facilities are among the largest employers in rural Pennsylvania counties, contagion within these facilities will almost certainly spread, via staff, to the surrounding communities.
Second, there is a strong public interest in minimizing the spread of COVID19 to help address the overwhelmed state of the U.S. medical system. Recent estimates suggest that due to lack of available Intensive Care Unit beds, hospitals in York, Pike, and Clinton counties will be some of the most strained in all of Pennsylvania, with demand 26 times greater than the existing capacity in ICUs. See supra Factual Background, Part II.20 It is accordingly in the public interest to minimize the number of infections, or at the very least slow the spread of the virus to help allow the medical system time to treat current patients and expand its capacity. See supra Factual Background, Parts I-II.
Third, it is also in the public interest to release detainees with particular medical vulnerabilities. The release of people most vulnerable to COVID-19 reduces the overall health risk for detainees and facility staff alike at the ICE
20 TRO-Ex. 11, Nathaniel Lash and Brett Sholtis, Demand for ICU beds will greatly outstrip availability if coronavirus hits Pa. hard, Bucks County Courier Times (Mar. 20, 2020), https://www.buckscountycouriertimes.com/news/20200320/demand-foricu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard.
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Facilities. See Amon Decl. ¶ 49. ICE has an interest in preventing any potential spread of COVID-19 in its detention facilities, particularly because detainees face great difficulty engaging in proper hygiene and social distancing in a detention environment. See supra Factual Background, Part III. Immigration detention facilities face greater risk of infectious spread because of crowding, the high percentage of detained people vulnerable to serious illness in the event of COVID19 transmission, and limited availability of medical care. Amon Decl. ¶¶ 29-35. Public health officials have testified that the release of vulnerable individuals is key to the risk mitigation strategy of any detention facility because it reduces the total number of detainees, allows for greater social distancing, and prevents overloading the work of detention staff. See supra Factual Background, Part IV. Plaintiffs’ release not only imposes minimal harm to the government, but also furthers ICE’s interests in maintaining a healthy and orderly environment at ICE Facilities.
D. The Balance of Equities Favors Releasing the Plaintiffs over Continued Detention In the Midst of this Public Health Crisis.
The balance of equities weighs heavily in favor of releasing the Plaintiffs—a limited number of older civil detainees whose medical conditions place them at heightened risk from COVID-19—from ICE custody. Plaintiffs are not incarcerated because they were convicted of or pleaded guilty to a crime. They are civil detainees
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awaiting their day in immigration court. Most are not even subject to mandatory detention, but are merely being detained at ICE’s discretion.
Defendants’ countervailing interest in indefinitely detaining the Plaintiffs in dangerous conditions is weak at best. To the contrary, ICE has in the past exercised its discretion to release vulnerable detainees like Plaintiffs, especially for medical reasons. See supra Factual Background, Part VII. That approach makes sense because ICE has many other methods to keep track of individuals other than keeping them in indefinite detention. Lorenzen-Strait Decl. ¶ 15. These methods are more than adequate to accomplish ICE’s goals.21 II. 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 “[t]he 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
21 If anything, under the unusual circumstances of this pandemic, there are fewer concerns than normal about flight risk from releasing detainees. See In re Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, at *1 (“The Court’s concern was that Toledo would flee the country, but international travel is hard now. Travel bans are in place, and even if Toledo got into another country, he would most likely be quarantined in God-knows-what conditions, which can’t be all that tempting.”).
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security required and whether to waive the requirement altogether. Temple Univ. v. White, 941 F.2d 201, 219 (3d Cir. 1991).
In deciding whether to waive the security requirement in noncommercial cases, the Third Circuit considers the possible loss to the enjoined party, the hardship that a bond requirement would impose on the applicant, and the special nature of suits to enforce important federal rights or public interests. Id. District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 446, 504 (D.N.J. 2001) (indigent and non-profit plaintiffs enforcing civil rights); Simcox v. Delaware County, No. 91-6874, 1992 WL 97896, at *6 (E.D. Pa. May 5, 1992). This Court should do the same here.
CONCLUSION The country faces a public health crisis of epic proportions. COVID-19 presents risks to all of us, and has forced us to come together as a country, put partisanship aside, and do what is right for the community and the public health. We must allow and encourage everyone to engage in practices that flatten the curve— social distancing and vigorous hygiene. This protects the most vulnerable among us and hopefully gives our overtaxed healthcare system the chance to treat those most gravely affected by COVID-19. Plaintiffs are among the most vulnerable, sitting ducks who have no choice but to wait for this deadly virus to rip through the ICE
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Facilities and leave havoc in its wake. The only humanitarian and constitutional solution is to order the immediate release of these Plaintiffs so they can protect themselves to the greatest extent possible. We plead with this Court to join the growing chorus of courts who have decided to act in an effort to save lives. The time to act is now. Plaintiffs’ motion for a temporary restraining order and preliminary injunction should be granted.

Dated: March 25, 2020
/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616

Respectfully Submitted,
/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

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Case 1:20-cv-00480-JEJ Document 12 Filed 03/25/20 Page 53 of 53
E: dfathi@aclu.org E: echo@aclu.org Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org *Petition for permission to file pro hac vice forthcoming
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,

Case No. 1:20-cv-00480-JEJ Judge John E. Jones III

Respondents-Defendants.

DECLARATION OF WITOLD J. WALCZAK Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. My name is Witold J. Walczak. I am the Legal Director for the American Civil Liberties Union of Pennsylvania and am counsel for PetitionersPlaintiffs. I make this declaration in support of Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction. 2. Attached hereto are true and correct copies of the following materials, identified by the following exhibit designations in Plaintiffs’ Memorandum of Law in support of their Motion For Temporary Restraining Order and/or Preliminary Injunction:

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TRO-Ex. 1 TRO-Ex. 2 TRO-Ex. 3 TRO-Ex. 4 TRO-Ex. 5
TRO-Ex. 6 TRO-Ex. 7 TRO-Ex. 8 TRO-Ex. 9 TRO-Ex. 10 TRO-Ex. 11

World Health Organization website page entitled Coronavirus disease (COVID-19) Pandemic
Pennsylvania Department of Health website page entitled Coronavirus (COVID-19)
U.S. Immigration & Customs Enforcement website page entitled ICE Guidance on COVID-19
News Release from the U.S. Immigrations & Customs Enforcement website entitled ICE detainee tests positive for COVID-19 at Bergen County Jail
Article by John Sandweg published on The Atlantic on March 22, 2020, entitled I Used to Run ICE. We Need to Release the Nonviolent Detainees
Article by J. David McSwane published on Pro Publica on March 20, 2020, entitled ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public
Consent Order, Dkt. No. 084230, issued by the Supreme Court of New Jersey on March 22, 2020
Letter written by Chief Justice Mike McGrath of the Montana Supreme Court on March 20, 2020
Letter written by Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH, to the House and Senate Committees on Homeland Security on March 19, 2020
Article by Priscilla DeGregory on the New York Post on March 24, 2020, entitled Coronavirus shuts down some NYC and NJ immigration courts
Article by Nathaniel Lash and Brett Sholtis on the Bucks County Courier Times on March 20, 2020, entitled Demand for ICU beds will greatly outstrip availability if coronavirus hits Pa. hard

Dated: March 25, 2020

/s/ Witold J. Walczak Witold J. Walczak

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TRO-Exhibit 1

3/24/2020

Case 1:20-cv-00480-JEJ DocumCeonrotna1v2iru-s2diseFaislee2d01093/25/20 Page 2 of 9

Coronavirus disease (COVID19) Pandemic
Protect yourself
Country & technical guidance
Latest updates - Live press conference (Geneva)

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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Live from WHO Headquarters - COVID-19 daily press …

WHO Director-General's opening remarks at the media briefing on COVID-19 23 March 2020
23 March 2020 I Speech
Pass the message: Five steps to kicking out coronavirus
23 March 2020 I News Release
Rolling updates on coronavirus disease (COVID-19) COVID-19 Response Fund
Donate
Your questions answered

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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Travel advice

Situation reports

Media resources

Research and Development

Mythbusters

EPI-WIN
Infodemic Management

Read More

Coronavirus disease (COVID-19) outbreak situation
https://www.who.int/emergencies/diseases/novel-coronavirus-2019

View dashboard →
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375,498
Confirmed cases

Updated : 24 March 2020, 17:53 GMT-4

16,362
Confirmed deaths

Updated : 24 March 2020, 17:53 GMT-4

196
Countries, areas or territories with cases

Updated : 24 March 2020, 17:53 GMT-4

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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How to protect yourself against COVID-19

All videos →

Novel coronavirus (2019-nCoV)

Online training →

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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At a glance: What WHO has done

What you need to know
What is a coronavirus? → How to protect yourself → Myth-busters → Travel advice → Questions & answers →

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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See all COVID-19 videos → Training and e-learning → COVID-19 and noncommunicable diseases →

Situation updates

Situation reports → Here you will find the latest situation updates and data regarding the COVID-19 outbreak. Disease Outbreak News → Since 21 January 2020, Disease Outbreak News have been replaced with daily situation reports. COVID-19 situation dashboard → Global situation dashboard → Report of the WHO-China Joint Mission → COVID-19 situation update for the WHO European Region →
Donors & Partners

See progress of contributions

Strategic Preparedness and Response Plan

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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Donor Alert
February 2020

Partners and Networks → Contingency fund for emergencies → United Nations website on coronavirus →
Research & Development
Update on research activities for novel coronavirus → WHO's R&D Blueprint has been activated to accelerate diagnostics, vaccines and therapeutics for this outbreak. International Clinical Trials Registry Platform → COVID-19 outbreak – Emergency Use Listing Procedure (EUL) announcement →

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

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TRO-Exhibit 2

Case 1:20-cv-00480-JEJ Document 12-3 Filed 03/25/20 Page 2 of 4

Case 1:20-cv-00480-JEJ Document 12-3 Filed 03/25/20 Page 3 of 4

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Case 1:20-cv-00480-JEJ Document 12-4 Filed 03/25/20 Page 1 of 3
TRO-Exhibit 3

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Official Website of the Department of Homeland Security

Report Crimes: Email or Call 1-866-DHS-2-ICE NOTICE Click here for the latest ICE guidance on COVID-19

ICE Guidance on COVID-19 Introduction

U.S. Immigration and Customs Enforcement (ICE) is working closely with the Department of Homeland Security (DHS) and other federal, state, and local agencies to facilitate a speedy, whole-of-government response in confronting Coronavirus Disease 2019 (COVID-19), keeping everyone safe, and helping detect and slow the spread of the virus. We know that during this time there are a lot of questions about how interactions with ICE officers are being impacted during this public health crisis. The public, media, family members with those in custody, and all other stakeholders are encouraged to revisit this site as often as possible for any updates to this extremely fluid situation.
Expand All Collapse All
GENERAL
What is ICE doing to safeguard its employees/personnel during this crisis?

The ICE Occupational Safety and Health (OSH) Unit continues to work diligently to ensure employees are operating under the safest and most practical conditions to reduce the risk of exposure and prevent further spreading of COVID-19 during the course of ongoing daily operations. The OSH Unit regularly provides guidance regarding integrating administrative controls such as social distancing in law enforcement settings, and the appropriate choice and use of personal protective equipment when administrative controls cannot be implemented. Besides providing information through an employee website, OSH officials have held conference calls, responded to emails, and spoken personally with employees who have safety questions. At all levels, ICE employees have access to the most current CDC and DHS guidance and assistance in this rapidly changing environment.

ICE is reviewing CDC guidance daily and will continue to update protocols to remain consistent with CDC guidance.

What is ICE doing in response to the COVID-19 virus?

Updated 03/18/2020 4:28pm

Law enforcement agencies across the country, to include ICE, are paying close attention to this pandemic. While our law enforcement officers and agents continue daily enforcement operations to make criminal and civil arrests, prioritizing individuals who threaten our national security and public safety, we remain committed to the health and safety of our employees and the general public. It is important for the public to know that ICE does not conduct operations at medical facilities, except under extraordinary circumstances. ICE policy directs our officers to avoid making arrests at sensitive locations – to include schools, places of worship, and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities – without prior approval for an exemption, or in exigent circumstances. See our FAQ for more.
Consistent with federal partners, ICE is taking important steps to further safeguard those in our care. As a precautionary measure, ICE has temporarily suspended social visitation in all detention facilities.
The health, welfare and safety of U.S. Immigration and Customs Enforcement (ICE) detainees is one of the agency’s highest priorities. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to ICE Health Service Corps (IHSC) staff for the screening and management of potential exposure among detainees.
ICE continues to incorporate CDC’s COVID-19 guidance, which is built upon the already established infectious disease monitoring and management protocols currently in use by the agency. In addition, ICE is actively working with state and local health partners to determine if any detainee requires additional testing or monitoring to combat the spread of the virus.
Updated 03/15/2020 2:38pm

CONFIRMED CASES

IMMIGRATION ENFORCEMENT and CHECK-INS

BONDS

https://www.ice.gov/covid19

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DETENTION

VISITATION AT DETENTION FACILITIES

REMOVALS

STAKEHOLDER ENGAGEMENT

NONIMMIGRANT STUDENTS AND SEVP-CERTIFIED SCHOOLS
Last Reviewed/Updated: 03/24/2020

https://www.ice.gov/covid19

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TRO-Exhibit 4

3/24/2020

Case 1:20-cv-00480IC-EJdEetJaineDe toesctsupmoseitinvet f1or2C-O5VIDF-1i9leadt B0er3ge/n2C5o/u2n0ty JaPil |aICgEe 2 of 2

Official Website of the Department of Homeland Security

Report Crimes: Email or Call 1-866-DHS-2-ICE NOTICE Click here for the latest ICE guidance on COVID-19
ICE Newsroom
News Releases News Releases Enforcement and Removal 03/24/2020 Share

ICE detainee tests positive for COVID-19 at Bergen County Jail
NEW YORK – A 31-year-old Mexican national in U.S. Immigration and Customs Enforcement custody at the Bergen County Jail in Hackensack, New Jersey, has tested positive for COVID-19. The individual has been quarantined and is receiving care. Consistent with CDC guidelines, those who have come in contact with the individual have been cohorted and are being monitored for symptoms. ICE is suspending intake at the facility until further information is available.
Additional information about ICE’s response to COVID-19 can be found at ICE.gov/COVID19.
Share
Last Reviewed/Updated: 03/24/2020

https://www.ice.gov/news/releases/ice-detainee-tests-positive-covid-19-bergen-county-jail

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TRO-Exhibit 5

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IDEAS
I Used to Run ICE. We Need to Release the Nonviolent Detainees.
It’s the only way to protect detention facilities and the people in them from COVID-19.
MARCH 22, 2020
John Sandweg
Former acting director of Immigration and Customs Enforcement

CHRIS CARLSON / AP IMAGES
With more than 37,000 detainees closely con ned in facilities across the country, Immigration and Customs Enforcement (ICE) detention centers are extremely susceptible to outbreaks of infectious diseases. e design of these facilities requires inmates to remain in close contact with one another—the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus.
[ Read: What you need to know about the coronavirus ]

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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As the former Acting Director of ICE under President Obama, I know that

preventing the virus from being introduced into these facilities is impossible. is

week, the Trump administration announced that, in light of its concern that the

virus could be introduced into detention centers, it would shift its enforcement

operations to focus only on criminals and dangerous individuals. is means that

the agency will arrest and place in detention only those undocumented immigrants

who have serious criminal convictions. ose without a criminal record will be

allowed to stay at home as they go through the deportation process. is is a

necessary and crucial rst step, but the administration must do more: It must

release the thousands of nonviolent, low- ight-risk detainees currently in ICE

custody.

ICE is fortunate that the threat posed by these detention centers can be mitigated rather easily. By releasing from custody the thousands of detainees who pose no threat to public safety and do not constitute an unmanageable ight risk, ICE can reduce the overcrowding of its detention centers, and thus make them safer, while also putting fewer people at risk.

is doesn’t mean that dangerous criminals will be walking the streets. ose who threaten Americans’ safety can and must continue to be detained. However, the immigration detention system is not designed to detain only those who have committed serious crimes or pose a signi cant ight risk. In fact, only a small percentage of those in ICE detention have been convicted of a violent crime. Many have never even been charged with a criminal oﬀense. ICE can quickly reduce the detained population without endangering our communities.

[ Read: How Trump radicalized ICE ]

e large-scale release of detainees doesn’t mean that undocumented immigrants should get a free pass either. ose who are released can and should continue to go through the deportation process. ICE can employ electronic monitoring and other tools to ensure their appearance at mandated hearings and remove them from the country when appropriate.

When an outbreak of COVID-19 occurs in an ICE facility, the detainees won’t be the only ones at risk. An outbreak will expose the hundreds of ICE agents and oﬃcers, medical personnel, contract workers, and others who work in these facilities to the virus. Once exposed, many of them will unknowingly take the virus

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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home to their family and community. Moreover, once the virus tears through a

detention center, crucial and limited medical resources will need to be diverted to

treat those infected. ICE can, and must, reduce the risk it poses to so many people,

and the most eﬀective way to do so is to drastically reduce the number of people it

is currently holding.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/

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TRO-Exhibit 6

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CICaEsHeas1R:2ep0e-actevd-ly0F0a4ile8d0to-CJoEnJtain CDoontcaguiomuseDniste1as2e-s7, OurFAinlealdysis0S3h/o2w5s/. 2It’0s a DPanaggereto2theoPf u7blic. — ProPublica

CORONAVIRUS
ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public.
ProPublica reviewed more than 70 reports detailing deaths in ICE detention over the last decade and found staﬀ often break strict rules for testing contagious diseases. At least 10 detainees face quarantine for potential exposure to coronavirus.
by J. David McSwane, March 20, 5 a.m. EDT

Yazmin Juárez testi ies on July 10, 2019, during a House Committee on Oversight and Reform hearing that her 19-month-old daughter, Mariee, died of a viral respiratory infection at an ICE detention facility. (Tom Williams/CQ Roll Call/Getty)

ProPublica is a nonproﬁt newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.
The coronavirus is threatening crowded Immigration and Customs Enforcement facilities with long histories of mishandling infectious diseases that can rapidly spread outside their walls, a ProPublica review of thousands of pages of death reports found.
The ICE population presents a particular danger as communities grapple with the novel disease. The analysis found that ICE has repeatedly failed to follow rules meant to contain communicable diseases inside its detention

https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagious-diseases-our-analysis-shows-its-a-danger-to-the-public

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CICaEsHeas1R:2ep0e-actevd-ly0F0a4ile8d0to-CJoEnJtain CDoontcaguiomuseDniste1as2e-s7, OurFAinlealdysis0S3h/o2w5s/. 2It’0s a DPanaggereto3theoPf u7blic. — ProPublica
centers, which can become breeding grounds for illness. As guards and nurses leave facilities and go home, those outbreaks can spread.
At a suburban Denver ICE facility, the Aurora Detention Center, 10 detainees have now been quarantined for potential exposure to the coronavirus. An ICE staﬀer at a New Jersey detention center has tested positive.

Help Us Report on Coronavirus
Are you a public health worker, medical provider, elected o icial, patient or other COVID-19 expert? Help make sure our journalism is responsible and focused on the right issues.
Note: If you develop emergency warning signs for COVID-19, such as di iculty breathing or bluish lips, get medical attention immediately. The CDC has more information on what to do if you are sick.

Last year, more than 5,200 detainees were quarantined as ICE tried to contain mumps and chickenpox. An analysis by the Centers for Disease Control and Prevention last year found mumps cases spiked at the same time the Trump administration packed more and more people into close quarters. Most of those detainees got sick while in federal custody, not before, the CDC found.

Problems with handling communicable illnesses inside packed ICE facilities have festered for years. ProPublica reviewed more than 70 reports detailing the circumstances around detainee deaths over the last decade and found medical staﬀ often don’t follow strict rules for testing contagious diseases.

The response to tuberculosis, a respiratory illness that can spread easily in conﬁned and crowded spaces, is a strong indication of how they’ll respond to other contagious diseases, medical experts say.

In a dozen cases ProPublica reviewed, medical experts who were called in to investigate a death in ICE custody raised alarms that staﬀ had failed to follow nationally accepted standards.

ProPublica identiﬁed six cases where failures to address communicable disease risks — such as practical nurses with little formal training waiting far too long to notify doctors of ill patients — were later found to have been contributing factors in the deaths of immigrants.

Dr. Marc Stern, a medical expert who used to inspect ICE facilities as a contractor for the Department of Homeland Security, said the crowded conditions in prisons make them prime targets for outbreaks.

“The more people you have, the less social distancing you can do,” Stern said. “These events are going to be harder to manage as staﬀ can’t get to work because they get sick or they have to stay home with their kids.”

https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagious-diseases-our-analysis-shows-its-a-danger-to-the-public

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CICaEsHeas1R:2ep0e-actevd-ly0F0a4ile8d0to-CJoEnJtain CDoontcaguiomuseDniste1as2e-s7, OurFAinlealdysis0S3h/o2w5s/. 2It’0s a DPanaggereto4theoPf u7blic. — ProPublica
This time last year, after the third outbreak in four months at the Aurora Detention Center, including mumps and chickenpox, Aurora City Council member Allison Hiltz was fed up with the facility’s private management company for not alerting the city.

“They were not reporting their communicable diseases, and that included chickenpox that they had a couple of months prior to that,” Hiltz said.

She pushed through a city ordinance requiring GEO Group, a large ICE contractor, to report public health concerns to the local ﬁre department. At the same time, a rookie Democratic congressman, Jason Crow, demanded access to the facility and called for ICE to conduct monthly inspections. As recently as February, one of those inspections found sickness still raging in the facility, with 68 people quarantined with the ﬂu and an additional 70 with mumps. GEO Executive Vice President Pablo E. Paez said the company follows best practices in managing diseases.

Amid the global coronavirus pandemic, GEO said none of the quarantined detainees in Aurora have been conﬁrmed as sick with the disease.

But Hiltz said GEO must step up its monitoring of the virus.“If you look at what’s happening now, there’s no vaccine for this,” she said. “It only takes one person in a facility like that to spread pretty quickly, and there’s no immunity for the employees who are coming and going and taking their kids to school and grocery shopping.”

In Aurora and across the country, ICE has repeatedly struggled to contain communicable diseases that can spread in ways similar to the coronavirus, the review of death reports found. The reports focused on the medical histories of detainees but do not make clear whether they infected others.

During a medical check up in January 2018, detainee Yulio Castro-Garrido, who worked in the kitchen at the Stewart Detention Center in Georgia, had a fever, rapid pulse, cough and runny nose — ﬂu-like symptoms. But medical staﬀ did not order him to stay in his cell and let him return to the kitchen where, medical investigators later wrote, he could have been “transmitting contagious illness.”

He died the next month, at age 33, of pneumonia and the ﬂu.

Later in 2018, medical screeners at the Otay Mesa Detention Center in California took an X-ray of a 62-year-old woman from Mexico and found evidence of TB. Instead of immediately isolating her, the facility allowed Augstina Ramirez-Arreola to have close contact with other detainees for nearly three hours.

She died two months later.

Democrats in Washington have criticized ICE’s spotty record of handling infectious diseases, citing concerns that overcrowding amid Trump’s zero-

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CICaEsHeas1R:2ep0e-actevd-ly0F0a4ile8d0to-CJoEnJtain CDoontcaguiomuseDniste1as2e-s7, OurFAinlealdysis0S3h/o2w5s/. 2It’0s a DPanaggereto5theoPf u7blic. — ProPublica
tolerance policy heightens the risk of a deadly viral spread.
ICE did not respond to questions sent by ProPublica on Tuesday.
On its website, the agency says it has monitored the spread of COVID-19 and has epidemiologists tracking the outbreak and working with staﬀ in its ICE Health Service Corps.
“ICE continues to incorporate CDC’s COVID-19 guidance, which is built upon the already established infectious disease monitoring and management protocols currently in use by the agency. In addition, ICE is actively working with state and local health partners to determine if any detainee requires additional testing or monitoring to combat the spread of the virus,” the website says.
Paez, the GEO spokesperson, said the company is watching out for the new coronavirus and placed the 10 Aurora detainees “under observation.” He did not say whether GEO has tested others under the company’s care.
“Last week, in an abundance of caution, a cohort of 10 individuals was placed under observation as a precaution based on statements made by a visitor to the facility,” Paez said. “None of those individuals have exhibited any COVID-19 symptoms. At this time, all ICE processing centers have discontinued non-legal visitation.”
Meanwhile, civil rights attorneys have petitioned the Trump administration and ﬁled a lawsuit Monday arguing for the release of vulnerable detainees who could potentially get sick inside the country’s crowded immigrant detention system.
Elizabeth Jordan, a Denver-based lawyer who represents Aurora detainees, hasn’t been able to meet with clients as the coronavirus has spread. A lawsuit ﬁled last year by Jordan and a team of immigration lawyers accused ICE of widespread neglect and shoddy medical care.
“With the previous outbreaks, ICE handled it very poorly,” Jordan said. “This has the potential to be orders of magnitude worse.”
At this point, she said, her clients are more likely to get sick from someone bringing the virus into the packed facilities.
“They are sitting ducks,” she said.

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Filed under: Immigration, Health Care

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J. David McSwane is a reporter in ProPublica’s D.C. o ice covering healthcare, energy, federal contracts, and land issues.

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Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 1 of 15
TRO-Exhibit 7

Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 2 of 15

SUPREME COURT OF NEW JERSEY

FILED

DOCKET NO. 084230

MAR 2 2 2020

~ d ~··

CRIMINAL ACTION

In the Matter of the Request to Commute or Suspend County Jail
Sentences

CONSENT ORDER

This matter having come before the Court on the request for relief by the Office of the Public Defender (see attached letter dated March 19, 2020), seeking the Court's consideration of a proposed Order to Show Cause (see attached) designed to commute or suspend county jail sentences currently being served by county jail inmates either as a condition of probation for an indictable offense or because of a municipal court conviction; and
The Court, on its own motion, having relaxed the Rules of Court to permit the filing of the request for relief directly with the Supreme Court, based on the dangers posed by Coronavirus disease 19 ("COVID-19"), and the statewide impact of the nature of the request in light of the Public Health Emergency and State of Emergency declared by the Governor. See Executive Order No. 103 (2020) (Mar. 9, 2020); and

Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 3 of 15
The Office of the Attorney General, the County Prosecutors Association, the Office of the Public Defender, the American Civil Liberties Union of New Jersey having engaged in mediation before the Honorable Philip S. Carchman, P.J.A.D. (ret.); and
The parties having reviewed certifications from healthcare professionals regarding the profound risk posed to people in correctional facilities arising from the spread of COVID-19; and
The parties agreeing that the reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19; and
It being agreed to by all parties as evidenced by the attached duly executed consent form;
IT IS HEREBY ORDERED, that A. No later than 6:00 a.m. on Tuesday, March 24, 2020, except as provided
in paragraph C, any inmate currently serving a county jail sentence (1) as a condition of probation, or (2) as a result of a municipal court conviction, shall be ordered released. The Court’s order of release shall include, at a minimum, the name of each inmate to be released, the inmate’s State Bureau of Identification (SBI) number, and the county jail where the inmate is being detained, as well as any standard or
2

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specific conditions of release. Jails shall process the release of inmates as efficiently as possible, understanding that neither immediate nor simultaneous release is feasible.
1. For inmates serving a county jail sentence as a condition of probation, the custodial portion of the sentence shall either be served at the conclusion of the probationary portion of the sentence or converted into a “time served” condition, at the discretion of the sentencing judge, after input from counsel.
2. For inmates serving a county jail sentence as a result of a municipal court conviction, the custodial portion of the sentence shall be suspended until further order of this Court upon the rescission of the Public Health Emergency declared Executive Order No. 103, or deemed satisfied, at the discretion of the sentencing judge, after input from counsel.
B. No later than noon on Thursday, March 26, 2020, except as provided in paragraph C, any inmate serving a county jail sentence for any reason other than those described in paragraph A shall be ordered released. These sentences include, but are not limited to (1) a resentencing following a finding of a violation of probation in any Superior Court or municipal court, and (2) a county jail sentence not tethered to a
3

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probationary sentence for a fourth-degree crime, disorderly persons offense, or petty disorderly persons offense in Superior Court. The custodial portion of the sentence shall be suspended until further order of this Court upon the rescission of the Public Health Emergency declared Executive Order No. 103, or deemed satisfied, at the discretion of the sentencing judge, after input from counsel. Jails shall process the release of inmates as efficiently as possible, understanding that neither immediate nor simultaneous release is feasible. C. Where the County Prosecutor or Attorney General objects to the release of an inmate described in Paragraph A, they shall file a written objection no later than 5:00 p.m. on Monday, March 23, 2020. Where the County Prosecutor or Attorney General objects to the release of an inmate described in Paragraph B, they shall file a written objection no later than 8:00 a.m. on Thursday, March 26, 2020.
1. The objection shall delay the order of release of the inmate and shall explain why the release of the inmate would pose a significant risk to the safety of the inmate or the public.
2. Written objections shall be filed by email to the Supreme Court Emergent Matter inbox with a copy to the Office of the Public Defender.
4

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3. The Office of the Public Defender shall provide provisional representation to all inmates against whom an objection has been lodged under this Paragraph.
4. The Office of the Public Defender shall, no later than 5:00 p.m. on Tuesday, March 24, 2020, provide responses to any objections to release associated with inmates described in Paragraph A, as it deems appropriate. The Office of the Public Defender shall, no later than 5:00 p.m. on Thursday, March 26, 2020, provide responses to any objections to release associated with inmates described in Paragraph B, as it deems appropriate.
5. The Court shall appoint judge(s) or Special Master(s) to address the cases in which an objection to release has been raised. a. On or before Wednesday, March 25, 2020, the judge(s) or Special Master(s) will begin considering disputed cases arising from Paragraph A; on or before Friday, March 27, 2020, the judge(s) or Special Master(s) will consider disputed cases arising from Paragraph B. i. The judge(s) or Special Master(s) shall conduct summary proceedings, which shall be determined on the papers. In the event the judge(s) or Special
5

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Master(s) conduct a hearing of any sort, inmates’ presence shall be waived. ii. Release shall be presumed, unless the presumption is overcome by a finding by a preponderance of the evidence that the release of the inmate would pose a significant risk to the safety of the inmate or the public. iii. At any point, the Prosecutor may withdraw its objection by providing notice to the judge(s) or Special Master(s) with a copy to the Office of the Public Defender. In that case, inmates shall be released subjected to the provisions of Paragraphs D-I. iv. If the judge(s) or Special Master(s) determine by a preponderance of the evidence that the risk to the safety of the inmate or the public can be effectively managed, the judge(s) or Special Master(s) shall order the inmate’s immediate release, subject to the provisions of paragraphs DI.
6

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1. The Order of the judge(s) or Special Master(s) may be appealed on an emergent basis, in a summary manner to the Appellate Division.
2. Should a release Order be appealed, the release Order shall be stayed pending expedited review by the Appellate Division.
3. The record on appeal shall consist of the objection and response filed pursuant to this Paragraph.
v. If the judge(s) or Special Master(s) determine by a preponderance of the evidence that risks to the safety of the inmate or the public cannot be effectively managed, the judge(s) or Special Master(s) shall order the inmate to serve the balance of the original sentence. 1. The Order of the judge(s) or Special Master(s) may be appealed on an emergent basis, in a summary manner to the Appellate Division.
7

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2. Should an Order requiring an inmate to serve the balance of his sentence be appealed, the Appellate Division shall conduct expedited review.
3. The record on appeal shall consist of the objection and response filed pursuant to this Paragraph.
b. The judge(s) or Special Master(s) should endeavor to address all objections no later than Friday, March 27, 2020.
D. Any warrants associated with an inmate subject to release under this order, other than those associated with first-degree or second-degree crimes, shall be suspended. Warrants suspended under this Order shall remain suspended until ten days after the rescission of the Public Health Emergency associated with COVID-19. See Executive Order No. 103 (2020) (Mar. 9, 2020).
E. In the following circumstances, the county jail shall not release an inmate subject to release pursuant to Paragraphs A, B, or C(5)(a)(iii) or (iv), absent additional instructions from the judge(s) or Special Master(s):
8

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1. For any inmate who has tested positive for COVID-19 or has been identified by the county jail as presumptively positive for COVID-19, the county jail shall immediately notify the parties and the County Health Department of the inmate’s medical condition, and shall not release the inmate without further instructions from the judge(s) or Special Master(s). In such cases, the parties shall immediately confer with the judge(s) or Special Master(s) to determine a plan for isolating the inmate and ensuring the inmate’s medical treatment and/or mandatory self-quarantine.
2. For any inmate who notifies the county jail that he or she does not wish, based on safety, health, or housing concerns, to be released from detention pursuant to this Consent Order, the county jail shall immediately notify the parties of the inmate’s wishes, and shall not release the inmate without further instructions from the judge(s) or Special Master(s). In such cases, the parties shall immediately confer with the judge(s) or Special Master(s) to determine whether to release the inmate over the inmate’s objection.
9

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F. Where an inmate is released pursuant to Paragraphs A, B, or C(5)(a)(iii) or (iv), conditions, other than in-person reporting, originally imposed by the trial court shall remain in full force and effect. County jails shall inform all inmates, prior to their release, of their continuing obligation to abide by conditions of probation designed to promote public safety. Specifically: 1. No-contact orders shall remain in force. 2. Driver’s license suspensions remain in force. 3. Obligations to report to probation officers in-person shall be converted to telephone or video reporting until further order of this Court. 4. All inmates being released from county jails shall comply with any Federal, State, and local laws, directives, orders, rules, and regulations regarding conduct during the declared emergency. Among other obligations, inmates being released from county jails shall comply with Executive Order No. 107 (2020) (Mar. 21, 2020), which limits travel from people’s homes and mandates “social distancing,” as well as any additional Executive Orders issued by the Governor during the Public Health Emergency associated with COVID-19.
10

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5. All inmates being released from county jails are encouraged to self-quarantine for a period of fourteen (14) days.
6. Unless otherwise ordered by the judge(s) or Special Master(s), any inmate being released from a county jail who appears to be symptomatic for COVID-19 is ordered to self-quarantine for a period of fourteen (14) days and follow all applicable New Jersey Department of Health protocols for testing, treatment, and quarantine or isolation.
G. County Prosecutors and other law enforcement agencies shall, to the extent practicable, provide notice to victims of the accelerated release of inmates. 1. In cases involving domestic violence, notification shall be made. N.J.S.A. 2C:25-26.1. Law enforcement shall contact the victim using the information provided on the “Victim Notification Form.” Attorney General Law Enforcement Directive No. 2005-5. a. Where the information provided on the “Victim Notification Form” does not allow for victim contact, the Prosecutor shall notify the Attorney General.
11

Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 13 of 15
b. If the Attorney General, or his designee, is convinced that law enforcement has exhausted all reasonable efforts to contact the victim, he may relax the obligations under N.J.S.A. 2C:25-26.1.
2. In other cases with a known victim, law enforcement shall make all reasonable efforts to notify victims of the inmate’s accelerated release.
3. To the extent permitted by law, the Attorney General agrees to relax limitations on benefits under the Violent Crimes Compensation Act (N.J.S.A. 52:4B-1, et seq.) to better provide victims who encounter the need for safety, health, financial, mental health or legal assistance from the State Victims of Crime Compensation Office.
H. The Office of the Public Defender agrees to provide the jails information to be distributed to each inmate prior to release that includes: 1. Information about the social distancing practices and stay-athome guidelines set forth by Executive Order No. 107, as well as other sanitary and hygiene practices that limit the spread of COVID-19;
12

Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 14 of 15
2. Information about the terms and conditions of release pursuant to this consent Order;
3. Guidance about how to contact the Office of the Public Defender with any questions about how to obtain services from social service organizations, including mental health and drug treatment services or any other questions pertinent to release under this consent Order.
I. Any inmate released pursuant to this Order shall receive a copy of this Order, as well as a copy of any other Order that orders their release from county jail, prior to their release.
J. Relief pursuant to this Order is limited to the temporary suspension of custodial jail sentences; any further relief requires an application to the sentencing court.
13

Case 1:20-cv-00480-JEJ Document 12-8 Filed 03/25/20 Page 15 of 15

3/22/2020 9:50 p.m. Date

/s/Stuart Rabner Chief Justice Stuart Rabner, for the Court

The undersigned hereby consents to the form and entry of the foregoing Order.

3/22/2020 Date

/s/Gurbir S. Grewal Office of the Attorney General

3/22/2020 Date

/s/Angelo J. Onofri County Prosecutors Association of New Jersey

3/22/2020 Date

/s/Joseph E. Krakora Office of the Public Defender

3/22/2020 Date

/s/Alexander Shalom American Civil Liberties Union of New Jersey

14

Case 1:20-cv-00480-JEJ Document 12-9 Filed 03/25/20 Page 1 of 2
TRO-Exhibit 8

Case 1:20-cv-00480-JEJ Document 12-9 Filed 03/25/20 Page 2 of 2

Case 1:20-cv-00480-JEJ Document 12-10 Filed 03/25/20 Page 1 of 8
TRO-Exhibit 9

Case 1:20-cv-00480-JEJ Document 12-10 Filed 03/25/20 Page 2 of 8

Scott A. Allen, MD, FACP Professor Emeritus, Clinical Medicine University of California Riverside School of Medicine Medical Education Building 900 University Avenue Riverside, CA 92521

Josiah “Jody” Rich, MD, MPH Professor of Medicine and Epidemiology, Brown University Director of the Center for Prisoner Health and Human Rights Attending Physician, The Miriam Hospital, 164 Summit Ave. Providence, RI 02906

March 19, 2020

The Honorable Bennie Thompson Chairman House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Ron Johnson Chairman Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Mike Rogers Ranking Member House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Gary Peters Ranking Member Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Carolyn Maloney Chairwoman House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

The Honorable Jim Jordan Ranking Member House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

Dear Committee Chairpersons and Ranking Members:
We are physicians—an internist and an infectious disease specialist—with unique expertise in medical care in detention settings.1 We currently serve as medical subject matter experts for the

1 I, Dr. Scott Allen, MD, FACP, am a Professor Emeritus of Medicine, a former Associate Dean of Academic Affairs and former Chair of the Department of Internal Medicine at the University of California Riverside School of Medicine. From 1997 to 2004, I was a full-time correctional physician for the Rhode Island Department of Corrections; for the final three years, I served as the State Medical Program. I have published over 25 peer-reviewed papers in academic journals related to prison health care and am a former Associate Editor of the International Journal of Prisoner Health Care. I am the court appointed monitor for the consent decree in litigation involving
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Case 1:20-cv-00480-JEJ Document 12-10 Filed 03/25/20 Page 3 of 8
Department of Homeland Security’s Office of Civil Rights and Civil Liberties (CRCL). One of us (Dr. Allen) has conducted numerous investigations of immigration detention facilities on CRCL’s behalf over the past five years. We both are clinicians and continue to see patients, with one of us (Dr. Rich) currently providing care to coronavirus infected patients in an ICU setting.
As experts in the field of detention health, infectious disease, and public health, we are gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19. In recent weeks, attention has rightly turned to the public health response in congregate settings such as nursing homes, college campuses, jails, prisons and immigration detention facilities (clusters have already been identified in Chinese and Iranian prisons according to news reports2 and an inmate and an officer have reportedly just tested positive at New York’s Rikers Island).3 Reporting in recent days reveals that immigrant detainees at ICE’s Aurora facility are in isolation for possible exposure to coronavirus.4 And a member of ICE’s medical staff at a private detention center in New Jersey has now been reported to have tested positive for coronavirus.5
We have shared our concerns about the serious medical risks from specific public health and safety threats associated with immigration detention with CRCL’s Officer Cameron Quinn in an initial letter dated February 25, 2020, and a subsequent letter of March 13, 2020. We offered to
medical care at Riverside County Jails. I have consulted on detention health issues both domestically and internationally for the Open Society Institute and the International Committee of the Red Cross, among others. I have worked with the Institute of Medicine on several workshops related to detainee healthcare and serve as a medical advisor to Physicians for Human Rights. I am the co-founder and co-director of the Center for Prisoner Health and Human Rights at Brown University (www.prisonerhealth.org), and a former Co-Investigator of the University of California Criminal Justice and Health Consortium. I am also the founder and medical director of the Access Clinic, a primary care medical home to adults with developmental disabilities.
I, Dr. Josiah (Jody) Rich, MD, MPH, am a Professor of Medicine and Epidemiology at The Warren Alpert Medical School of Brown University, and a practicing Infectious Disease Specialist since 1994 at The Miriam Hospital Immunology Center providing clinical care for over 22 years, and at the Rhode Island Department of Corrections caring for prisoners with HIV infection and working in the correctional setting doing research. I have published close to 190 peer-reviewed publications, predominantly in the overlap between infectious diseases, addictions and incarceration. I am the Director and Co-founder of The Center for Prisoner Health and Human Rights at The Miriam Hospital (www.prisonerhealth.org), and a Co-Founder of the nationwide Centers for AIDS Research (CFAR) collaboration in HIV in corrections (CFAR/CHIC) initiative. I am Principal Investigator of three R01 grants and a K24 grant all focused on incarcerated populations. My primary field and area of specialization and expertise is in the overlap between infectious diseases and illicit substance use, the treatment and prevention of HIV infection, and the care and prevention of disease in addicted and incarcerated individuals. I have served as an expert for the National Academy of Sciences, the Institute of Medicine and others. 2 Erin Mendel, “Coronavirus Outbreaks at China Prisons Spark Worries About Unknown Clusters,” Wall Street Journal, February 21, 2020, available at: https://www.wsj.com/articles/coronavirus-outbreaks-at-china-prisonsspark-worries-about-unknown-clusters-11582286150; Center for Human Rights in Iran, “Grave Concerns for Prisoners in Iran Amid Coronavirus Outbreak,” February 28, 2020, available at https://iranhumanrights.org/2020/02/grave-concerns-for-prisoners-in-iran-amid-coronavirus-outbreak/. 3 Joseph Konig and Ben Feuerherd, “First Rikers Inmate Tests Positive for Coronavirus” New York Post. March 18, 2020, available at: https://nypost.com/2020/03/18/first-rikers-island-inmate-tests-positive-for-coronavirus/ 4 Sam Tabachnik, “Ten detainees at Aurora’s ICE detention facility isolated for possible exposure to coronavirus,” The Denver Post, March 17, 2020, available at https://www.denverpost.com/2020/03/17/coronavirus-ice-detentiongeo-group-aurora-colorado/. 5 Emily Kassie, “First ICE Employees Test Positive for Coronavirus,” The Marshall Project, March 19, 2020, available at https://www.themarshallproject.org/2020/03/19/first-ice-employees-test-positive-for-coronavirus
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work with DHS in light of our shared obligation to protect the health, safety, and civil rights of detainees under DHS’s care. Additionally, on March 17, 2020 we published an opinion piece in the Washington Post warning of the need to act immediately to stem the spread of the coronavirus in jails and prisons in order to protect not only the health of prisoners and corrections workers, but the public at large.6
In the piece we noted the parallel risks in immigration detention. We are writing now to formally share our concerns about the imminent risk to the health and safety of immigrant detainees, as well as to the public at large, that is a direct consequence of detaining populations in congregate settings. We also offer to Congress, as we have to CRCL, our support and assistance in addressing the public health challenges that must be confronted as proactively as possible to mitigate the spread of the coronavirus both in, and through, immigration detention and congregate settings.
Nature of the Risk in Immigration Detention and Congregate Settings
One of the risks of detention of immigrants in congregant settings is the rapid spread of infectious diseases. Although much is still unknown, the case-fatality rate (number of infected patients who will die from the disease) and rate of spread for COVID-19 appears to be as high or higher than that for influenza or varicella (chicken pox).
In addition to spread within detention facilities, the extensive transfer of individuals (who are often without symptoms) throughout the detention system, which occurs with great frequency in the immigration context, could rapidly disseminate the virus throughout the entire system with devastating consequences to public health.7
Anyone can get a coronavirus infection. While healthy children appear to suffer mildly if they contract COVID-19, they still pose risk as carriers of infection, particularly so because they may not display symptoms of illness.8 Family detention continues to struggle with managing outbreaks of influenza and varicella.9 Notably, seven children who have died in and around
6 Josiah Rich, Scott Allen, and Mavis Nimoh, “We must release prisoners to lessen the spread of coronavirus,” Washington Post, March 17, 2020, available at https://www.washingtonpost.com/opinions/2020/03/17/we-mustrelease-prisoners-lessen-spread-coronavirus/. 7 See Hamed Aleaziz, “A Local Sheriff Said No To More Immigrant Detainees Because of Coronavirus Fears. So ICE Transferred Them All To New Facilities,” BuzzFeed News, March 18, 2020 (ICE recently transferred170 immigrant detainees from Wisconsin to facilities in Texas and Illinois. “’In order to accommodate various operational demands, ICE routinely transfers detainees within its detention network based on available resources and the needs of the agency…’ an ICE official said in a statement.”), available at https://www.buzzfeednews.com/article/hamedaleaziz/wisconsin-sheriff-ice-detainees-coronavirus 8 Interview with Jay C. Butler, MD, Deputy Director for Infectious Diseases, Centers for Disease Control and Prevention, “Coronovirus (COVID-19) Testing,” JAMA Network, March 16, 2020, available at https://youtu.be/oGiOi7eV05g (min 19:00). 9 Indeed, I (Dr. Allen) raised concerns to CRCL, the DHS Office of Inspector General, and to Congress in July 2018, along with my colleague Dr. Pamela McPherson, about the risks if harm to immigrant children in family detention centers because of specific systemic weaknesses at those facilities in their ability to provide for the medical and mental health needs of children in detention. See, e.g., July 17, 2018 Letter to Senate Whistleblower Caucus Chairs from Drs. Scott Allen and Pamela McPherson, available at https://www.wyden.senate.gov/imo/media/doc/Doctors%20Congressional%20Disclosure%20SWC.pdf. Those concerns, including but not limited to inadequate medical staffing, a lack of translation services, and the risk of
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immigration detention, according to press reports, six died of infectious disease, including three deaths from influenza.10 Containing the spread of an infection in a congregate facility housing families creates the conditions where many of those infected children who do not manifest symptoms will unavoidably spread the virus to older family members who may be a higher risk of serious illness.
Finally, as you well know, social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection and to try to reduce the number of those needing medical treatment from the already-overwhelmed and inadequately prepared health care providers and facilities. However, social distancing is an oxymoron in congregate settings, which because of the concentration of people in a close area with limited options for creating distance between detainees, are at very high risk for an outbreak of infectious disease. This then creates an enormous public health risk, not only because disease can spread so quickly, but because those who contract COVID-19 with symptoms that require medical intervention will need to be treated at local hospitals, thus increasing the risk of infection to the public at large and overwhelming treatment facilities.
As local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community.To be more explicit, a detention center with a rapid outbreak could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc). In the alternate scenario where detainees are released from high risk congregate settings, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out. In the first scenario, many people from the detention center and the community die unnecessarily for want of a ventilator. In the latter, survival is maximized as the local mass outbreak scenario is averted.
It is additionally concerning that dozens of immigration detention centers are in remote areas with limited access to health care facilities. Many facilities, because of the rural locations, have only one on-site medical provider. If that provider gets sick and requires being quarantined for at least fourteen days, the entire facility could be without any medical providers at all during a foreseeable outbreak of a rapidly infectious disease. We simply can’t afford a drain on resources/medical personnel from any preventable cases.
communication breakdowns and confusion that results from different lines of authority needing to coordinate between various agencies and partners from different government programs and departments responsible for detention programs with rapid turnover, all continue to contribute to heightened risks to meeting the medical challenges posed by the spread of the coronavirus. 10 Nicole Acevedo, “Why are children dying in U.S. custody?,” NBC News, May 29, 2019, available at https://www.nbcnews.com/news/latino/why-are-migrant-children-dying-u-s-custody-n1010316
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Proactive Approaches Required
Before coronavirus spreads through immigration detention, proactivity is required in three primary areas: 1) Processes for screening, testing, isolation and quarantine; 2) Limiting transport and transfer of immigrant detainees; and 3) Implementing alternatives to detention to facilitate as much social distancing as possible.
Protocols for early screening, testing, isolation and quarantine exist in detention settings to address infectious diseases such as influenza, chicken pox and measles. However, the track record of ICE facilities implementing these protocols historically has been inconsistent. In the current scenario, with widespread reporting about the lack of available tests for COVID-19 and challenges for screening given the late-onset display of symptoms for what is now a communityspread illness, detention facilities, like the rest of country, are already behind the curve for this stage of mitigation.
Detention facilities will need to rapidly identify cases and develop plans to isolate exposed cohorts to limit the spread, as well as transfer ill patients to appropriate facilities. Screening should occur as early as possible after apprehension (including at border holding facilities) to prevent introduction of the virus into detention centers. We strongly recommend ongoing consultation with CDC and public health officials to forge optimal infection prevention and control strategies to mitigate the health risks to detained patient populations and correctional workers. Any outbreak in a facility could rapidly overwhelm the capacity of healthcare programs. Partnerships with local public health agencies, hospitals and clinics, including joint planning exercises and preparedness drills, will be necessary.
Transferring detainees between facilities should be kept to an absolute minimum. The transfer process puts the immigrants being transferred, populations in the new facilities, and personnel all at increased risk of exposure. The nationwide network of detention centers, where frequent and routine inter-facility transfers occur, represents a frighteningly efficient mechanism for rapid spread of the virus to otherwise remote areas of the country where many detention centers are housed.
Finally, regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.
Congregant settings have a high risk of rapid spread of infectious diseases, and wherever possible, public health mitigation efforts involve moving people out of congregate settings (as we are seeing with colleges and universities and K-12 schools).11 Minimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with
11 Madeline Holcombe, “Some schools closed for coronavirus in US are not going back for the rest of the academic year,” CNN, March 18, 2020, available at https://www.cnn.com/2020/03/18/us/coronavirus-schools-not-going-backyear/index.html; Eric Levenson, Chris Boyette and Janine Mack, “Colleges and universities across the US are canceling in-person classes due to coronavirus,” CNN, March 12, 2020, available at https://www.cnn.com/2020/03/09/us/coronavirus-university-college-classes/index.html.
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Case 1:20-cv-00480-JEJ Document 12-10 Filed 03/25/20 Page 7 of 8
chronic diseases. COVID-19 infection among these groups will require many to be transferred to local hospitals for intensive medical and ventilator care—highly expensive interventions that may soon be in short supply.
Given the already established risks of adverse health consequences associated with the detention of children and their families,12 the policy of detention of children and their families in should be reconsidered in light of these new infectious disease threats so that children would only be placed in congregate detention settings when lower risk community settings are not available and then for as brief a time as possible.
In addition, given the low risk of releasing detainees who do not pose a threat to public safety— i.e., those only charged with immigration violations—releasing all immigration detainees who do not pose a security risk should be seriously considered in the national effort to stop the spread of the coronavirus.
Similarly, the practice of forcing asylum seekers to remain in Mexico has created a de facto congregate setting for immigrants, since large groups of people are concentrated on the US southern border as a result of the MPP program in the worst of hygienic conditions without any basic public health infrastructure or access to medical facilities or the ability to engage in social distancing as they await asylum hearings, which are currently on hold as a consequence of the government’s response to stop the spread of the coronavirus.13 This is a tinderbox that cannot be ignored in the national strategy to slow the spread of infection.
ICE recently announced that in response to the coronavirus pandemic, it will delay arresting immigrants who do not pose public safety threats, and will also stop detaining immigrants who fall outside of mandatory detention guidelines.14 But with reporting that immigrant detainees at ICE facilities are already being isolated for possible exposure to coronavirus, it is not enough to simply stop adding to the existing population of immigrant detainees. Social distancing through release is necessary to slow transmission of infection.15
Reassessing the security and public health risks, and acting immediately, will save lives of not only those detained, but also detention staff and their families, and the community-at-large.
12 Report of the DHS Advisory Committee on Family Residential Centers, September 30, 2016, available at https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc16093.pdf 13 See Rick Jervis, “Migrants waiting at US-Mexico border at risk of coronavirus, health experts warn,” USA Today, March 17, 2020, available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hardcoronavirus-migrants-wait-mexico/5062446002/. 14 ICE website, Guidance on COVID-19, Immigration and Enforcement Check-Ins, Updated March 18, 2020, 7:45 pm, available at https://www.ice.gov/covid19. 15 Release of immigrants from detention to control the coronavirus outbreak has been recommended by John Sandweg, former acting head of ICE during the Obama administration, who further noted, "’The overwhelming majority of people in ICE detention don't pose a threat to public safety and are not an unmanageable flight risk.’…’Unlike the Federal Bureau of Prisons, ICE has complete control over the release of individuals. ICE is not carrying out the sentence imposed by a federal judge….It has 100% discretion.’" See Camilo Montoya-Galvez, “’Powder kegs’: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS News, March 19, 2020, available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.
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Case 1:20-cv-00480-JEJ Document 12-10 Filed 03/25/20 Page 8 of 8
Our legal counsel, Dana Gold of the Government Accountability Project, is supporting and coordinating our efforts to share our concerns with Congress and other oversight entities about the substantial and specific threats to public health and safety the coronavirus poses by congregate settings for immigrants. As we similarly offered to DHS, we stand ready to aid you in any way to mitigate this crisis and prevent its escalation in light of our unique expertise in detention health and experience with ICE detention specifically. Please contact our attorney, Dana Gold, at danag@whistleblower.org, or her colleague, Irvin McCullough, at irvinm@whistleblower.org, with any questions. Sincerely, /s/ Scott A. Allen, MD, FACP Professor Emeritus, University of California, School of Medicine Medical Subject Matter Expert, CRCL, DHS /s/ Josiah D. Rich, MD, MPH Professor of Medicine and Epidemiology The Warren Alpert Medical School of Brown University Medical Subject Matter Expert, CRCL, DHS
Cc: Dana Gold, Esq. and Irvin McCullough, Government Accountability Project Senate Committee on the Judiciary House Committee on the Judiciary White House Coronavirus Task Force
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Case 1:20-cv-00480-JEJ Document 12-11 Filed 03/25/20 Page 1 of 3
TRO-Exhibit 10

3/24/2020

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METRO
Coronavirus shuts down some NYC and NJ immigration courts
By Priscilla DeGregory

March 24, 2020 | 6:05pm

245 W Houston St New York View on Google Maps

Re©po2rt0a20prGoboloemgle

Immigration courts in New York City and New Jersey have closed for the day after people on-site tested positive for coronavirus, the Department of Justice announced.

The Varick Street immigration court — one of three Manhattan courts that remained open as of last week — closed for at least Tuesday, according to the Facebook page for the DOJ’s Executive O ce for Immigration Review.

“Following notice of a person with a con rmed case of coronavirus in EOIR space, the New York – Varick Immigration Court is closed tomorrow,” the post from late Monday said.

Another post from early Tuesday noti ed people who normally go to the Varick location that they could le papers in the Elizabeth, NJ, location — but that one too was closed just hours later because a person who tested positive for COVID-19 was on premises.

“Due to a report of the presence of an individual with a test-con rmed coronavirus diagnosis, the Elizabeth Immigration Court will be closed for the rest of the day,” the EOIR said on its Facebook page Tuesday afternoon.

SEE ALSO

The posts did not specify how long the closures would last.

Last Wednesday, nine immigration courts around the country closed amid concerns over the growing pandemic. Two of locations were in Manhattan.

The DOJ did not immediately return a request for comment. https://nypost.com/2020/03/24/coronavirus-shuts-down-some-nyc-and-nj-immigration-courts/

Letitia James urges Barr to stop in-person immigration
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courts during coronavirus

FILED UNDER CORONAVIRUS, CORONAVIRUS IN NY, COURTS, IMMIGRATION

https://nypost.com/2020/03/24/coronavirus-shuts-down-some-nyc-and-nj-immigration-courts/

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TRO-Exhibit 11

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Demand for ICU beds will greatly outstrip availability if coronavirus hits Pa. hard
By Nathaniel Lash of the Philadelphia Inquirer and Brett Sholtis of Spotlight PA / WITF Posted Mar 20, 2020 at 4:41 PM
Pennsylvania’s ICU units will need 2.5 to 7 times the number of beds they can likely make available, a new estimate shows. Just how great the need is will depend on how much of the population the virus ends up infecting — and how quickly.
YORK — Mayor Michael Helfrich spent much of Wednesday fielding calls from an office setup in his kitchen. York County had just confirmed its first cases of the coronavirus, and people had a lot of questions.
“It’s hard to compare it to anything else,” Helfrich said. “Even though we’re in the early stages, I think some of us, luckily, can see the potential dangers.”
Already in York and the surrounding region, there are few beds in intensive-care units and they’re often occupied. If COVID-19 spreads quickly, as it did in Italy, researchers estimate the need for beds here will be 26 times greater than the existing capacity in ICUs — more than anywhere else in the nation.
Those predictions come from a team at the Harvard Global Health Institute, which projects that if the outbreak peaks quickly over six months, Pennsylvania’s ICU units will need 2.5 to 7 times the number of beds they can likely make available. Just how great the need will be depends on how much of the population the virus ends up infecting.
The predictions are even more dire outside of the state’s major cities, where greater shares of elderly residents and fewer hospital beds spell trouble for the looming outbreak.

https://www.buckscountycouriertimes.com/news/20200320/demand-for-icu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard

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Existing ICUs will likely be overwhelmed, but “flattening the curve” can help.
The following maps show the "hospital referral regions" (groups of ZIP codes that roughly comprise a healthcare market) that lie in Pennsylvania (some of those markets intersect with states along the Pa. border). In each map, you can see how the potential number of free beds in intensive and critical care units in each region compare to the number of patients who will likely need care due to the coronavirus.

If the coronavirus infects 20% of the population over... ... 6 months
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Erie, PA

Pittsburgh, PA

Altoona, PA

Johnstown, PA

... 12 months
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Erie, PA

Pittsburgh, PA

Altoona, PA

Johnstown, PA

... 18 months

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Erie, PA

Pittsburgh, PA

Altoona, PA

Johnstown, PA

The projected shortfall in the York region is not entirely a surprise to Helfrich, who, with county officials, has set up an emergency response plan. He declined to provide details, but said it involves locating hospital resources like beds and ventilators and being ready to move them to where they are most needed.
“We’re acting the best as we can on our own, not knowing what the next decision from the state or federal government is going to be,” Helfrich said.

https://www.buckscountycouriertimes.com/news/20200320/demand-for-icu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard

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In an optimistic scenario, where the virus spreads slowly over the course of a year and only 20% of the population is infected, only Pittsburgh and WilkesBarre are projected to have the capacity for the number of patients who will need treatment in an ICU.
Predictions for the total share of the population that could be infected in an unmitigated scenario have reached as high as 80%. If the virus ends up infecting over 40% of the population, there’s no scenario where Pennsylvania’s existing systems will be able to treat all patients at the outbreak’s peak.
It’s unknown how many Pennsylvanians who get the virus will need an ICU bed, but current national and international estimates put the number at 3% to 10%. Health Secretary Rachel Levine said Thursday a 10% estimate is “about right” for Pennsylvania so far.
Levine told reporters the Health Department has cut regulations, making it easier for hospitals to add beds. She added the state is working with health systems to prepare for the surge in patients.
However, key questions remain unanswered.
Department spokesperson Nate Wardle said there are “nearly 3,400 intensive and critical care beds and 71 pediatric intensive care beds” in Pennsylvania. But he didn’t say how many beds health systems have committed to adding to prepare for the surge, or how they would do it. (Levine said hospitals have been directed to implement updated emergency plans that account for COVID-19 by Friday.)
Wardle said the Health Department has ventilators — a key piece of ICU equipment — on hand, but wouldn’t say how many or when the state would deploy them.
Across the state, health systems have muzzled their employees. Doctors who normally would be permitted to speak about their departments are being denied permission to talk. Reports about conditions at ICUs come by anonymous text or posted online, often along with desperate calls for more supplies.
WellSpan and UPMC Pinnacle would not answer questions but provided emailed statements saying they’re working with state and local officials.

https://www.buckscountycouriertimes.com/news/20200320/demand-for-icu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard

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Mark Ross, vice president of emergency management at the Hospital and Healthsystem Association of Pennsylvania — which represents those hospitals and works closely with the state Health Department — said facilities have what they need and are prepared to meet the increased demand for ICU services.
“We are using our surge plan and we are responding to the numbers we’re seeing,” Ross said. “We’re responding to those predictions.”
Thomas Tsai, a surgeon and researcher with the Harvard group, said the projections emphasize the need for the public to “flatten the curve” and delay the peak to buy the health-care system time to increase its capacity.
On Thursday, Gov. Tom Wolf ordered all businesses that aren’t “life-sustaining” to close. “To protect the health and safety of all Pennsylvanians, we need to take more aggressive mitigation actions,” Wolf said in a statement.
“We need social action to buy time,” Tsai said. “If we can flatten the curve from six to 18 months, we buy time for the second part of this: for hospitals to react to create more inpatient bed capacity and intensive care capacity.”
If mitigation efforts are successful in Pennsylvania, researchers posited that the virus would spread more slowly over the course of 18 months. In that best-case scenario, where the York region’s hospitals are also able to free up about half of their occupied ICU beds for COVID-19 patients, the area would still need 1.5 times its ICU capacity.

https://www.buckscountycouriertimes.com/news/20200320/demand-for-icu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard

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In Philadelphia, where projections show the system can bear the burden of patients in an 18-month scenario, hospitals are canceling elective surgeries to free up more space for coronavirus patients, according to city Health Commissioner Thomas Farley.
“The hospitals are anticipating a surge and trying to drive down other patients so they can make more beds available,” Farley said.
But in Philadelphia, too, officials were tight-lipped on the city’s actual maximum capacity.
“That question is difficult to answer because every day it changes. Every day the hospital population is different,” Mayor Jim Kenney said Tuesday.
The need for expanded ICU beds has been put on stark display in countries like Italy, where the virus has been spreading for 11 days longer than in the U.S.
In the Lombardy region, the epicenter of the pandemic in Italy, the share of patients with the virus admitted into hospitals has fluctuated, but is not trending downward. However, fewer patients were admitted to ICUs. As fewer patients were admitted to intensive-care units, the share of patients dying from COVID19 began to rise.
Data published by the Italian government show how in the first two weeks of the pandemic, deceased patients made up less than 5% of positive cases in the region. But as more cases streamed in, deaths rose, making up over 10% of the patients who had tested positive for the virus in Lombardy by Tuesday.
As the ICUs in Lombardy have filled with patients, doctors have had to prioritize access to beds and ventilators to younger patients who are more likely to survive.

https://www.buckscountycouriertimes.com/news/20200320/demand-for-icu-beds-will-greatly-outstrip-availability-if-coronavirus-hits-pa-hard

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In Italy's Lombardy region, deaths on the rise, patients less likely to receive intensive care

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In Italy overall, the share of patients testing positive for the coronavirus who are in an ICU has averaged about 9%. The models used by the Harvard researchers estimate that 5% of confirmed cases will need treatment in an ICU.
“In practice, the health care system cannot sustain an uncontrolled outbreak, and stronger containment measures are now the only realistic option to avoid the total collapse of the ICU system,” wrote a group of Milan-based doctors on Friday.
Inquirer sta f writer Laura McCrystal contributed to this article.
This story was produced as part of a joint effort among Spotlight PA, LNP Media Group, PennLive, PA Post, and WITF to cover how Pennsylvania state government is responding to the coronavirus. Sign up for Spotlight PA’s newsletter.
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 Case 1:20-cv-00480-JEJ Document 33 Filed 03/27/20 Page 1 of 3

Eastern Region Office PO Box 60173 Philadelphia, PA 19102 215-592-1513 T 215-592-1343 F
Central Region Office PO Box 11761 Harrisburg, PA 17108 717-238-2258 T 717-236-6895 F
Western Region Office PO Box 23058 Pittsburgh, PA 15222 412-681-7736 T 412-681-8707 F

March 27, 2020
VIA CM/ECF Honorable John E. Jones III United States District Court Middle District of Pennsylvania Ronald Reagan Federal Bldg. & U.S. Courthouse 228 Walnut Street Harrisburg, PA 17101
Re: Factual Updates in Thakker et al. v. Doll et al. (1:20-cv-00480-JEJ)
Dear Judge Jones:
Counsel for Petitioners write to notify your Honor about new factual developments in this case.
First, two of the Petitioners—Mansyur and Agus Prajoga—were released from Pike County Correctional Facility today. Counsel for Petitioners Mansyur and Prajoga were not notified about their release by Respondents, but rather through their immigration attorney.
Second, since the filing of the Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief on March 24, 2020 (ECF No. 1), Petitioners Idowu, Lin, Oyediran, Stubbs, and Thakker provided new information regarding how Clinton, Pike, and York are caring for sick detainees. Petitioner Thakker also notified Counsel for Petitioners that a staff member informed him that a correctional officer tested positive for COVID-19. Counsel for Petitioners provide this information to the Court through supplemental declarations. See Ex. 21—25.

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Third, while data on COVID-19 changes by the minute, we write to provide the Court with updated data. As of 9:27 PM today, there were 103,942 cases and 1,689 deaths in the United States. See https://coronavirus.jhu.edu/map.html. The Pennsylvania Department of Health reported 2,218 cases. Pike County has 23 confirmed cases and York County has 29 confirmed cases. See https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last visited at 9:57pm on March 27, 2020).
Fourth, due to the rapid increase in COVID-19 cases, Petitioners provide the Court with two additional declarations. See Ex. 26, 27.
Dr. Robert Greifinger is a physician who has worked in health care for prisoners for more than 30 years. His declaration discusses ICE’s numerous failures in adequately protecting detainees from COVID-19. Greifinger Decl. ¶¶ 3-9. He describes ICE’s failure to adequately protect high-risk detainees as a “preventable disaster” and that “ICE must release all people with risk factors to prevent serious illness including death.” Id. ¶ 13.
Dr. Dora Schriro has extensive experience in corrections and is lifelong public servant. She recommends that the “best correctional and correctional health care practice would require, at a minimum, the preemptive release of individuals who are at-risk of serious illness or death if they become infected with COVID-19.” Schriro Declaration ¶ 23. Dr. Schriro also highlights how ICE has numerous tools available to them that do not require detention to achieve their goals. See Id. ¶ 24 (“Alternatives to detention, including supervised release, informed by individualized risk assessment, are a highly effective method of managing immigration cases without either unnecessary pretrial detention or risk to public safety or risk of failure to appear for court hearings”); see also Id. ¶¶ 26-27.
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Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com

/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) Witold J. Walczak (PA 62976) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)*
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org

247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

*Admitted pro hac vice

3

Case 1:20-cv-00480-JEJ Document 33-1 Filed 03/27/20 Page 1 of 2
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs. CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents-Defendants.

Case No. 1:20-cv-00480 Judge John E. Jones III

DECLARATION OF VANESSA L. STINE Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. My name is Vanessa L. Stine. I am an Immigrants’ Rights Attorney with the American Civil Liberties Union of Pennsylvania and am counsel for Petitioners-Plaintiffs. I make this declaration in support of Petitioners’/Plaintiffs’ Verified Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief.

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Case 1:20-cv-00480-JEJ Document 33-1 Filed 03/27/20 Page 2 of 2
2. Attached hereto are true and correct copies of the following supplemental declarations: Ex. 21 Supplemental Declaration of Petitioner Bharatkumar G. Thakker Ex. 22 Supplemental Declaration of Petitioner Adebodun Adebomi Idowu Ex. 23 Supplemental Declaration of Petitioner Meiling Lin Ex. 24 Declaration of Maggie Kopel, who is providing pro bono immigration representation to Petitioner Mayowa Abayaomi Oyediran Ex. 25 Supplemental Declaration of Petitioner Courtney Stubbs Ex. 26 Declaration of Dr. Robert Greifinger Ex. 27 Declaration of Dr. Dora Schriro

Dated: March 27, 2020

/s/ Vanessa L. Stine Vanessa L. Stine

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Case 1:20-cv-00480-JEJ Document 33-2 Filed 03/27/20 Page 1 of 2
Exhibit 21

Case 1:20-cv-00480-JEJ Document 33-2 Filed 03/27/20 Page 2 of 2
Supplemental Declaration of Bharatkumar G. Thakker 1. Yesterday, March 26, a correctional officer (CO) told me that another CO tested positive.
The CO said they knew this from an announcement from the warden from March 24. 2. The CO also told me three other COs are also out sick, but they do not know what for. 3. I also heard that A block, which is the women’s block, is now on quarantine. I do not know
why.
I, Vanessa L. Stine, certify that I have reviewed the foregoing with Mr. Thakker on March 27, 2020 and that Mr. Thakker certified everything was true and correct.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 33-3 Filed 03/27/20 Page 1 of 2
Exhibit 22

Case 1:20-cv-00480-JEJ Document 33-3 Filed 03/27/20 Page 2 of 2
Supplemental Declaration of Adebodun Adebomi Idowu
1. On Wednesday, March 25, 2020, a person in our block was really sick. His initials are E.S. He was vomiting, had a cough, and seemed to have a fever. We were not sure if he had a fever because while he was hot, he had not been brought down to medical.
2. We were really concerned about him. He was one of the new guys that had been brought in by ICE the week before. The lieutenant told us that they were trying to do what they could but that they were short on staff.
3. Because he was not getting medical attention, Henry Pratt, who is on the same block as me, called the auditor general and attorney general hotlines. He told them about E.S. and his symptoms. He said they seemed similar to the symptoms of coronavirus.
4. Within a few hours of making that call, some people came and got E.S. They were wearing masks and gloves. They took his bedsheets but did not clean his bunk area. We also remained in the housing unit and did not see anyone clean the area.
5. The next day there was a new guy brought in to the same bunk that had been E.S.’s bunk. As far as I know, they did not clean or disinfect the bunk area before they brought the new guy in.
6. I heard from the nurse yesterday that E.S. is still in the hospital.
7. The staff are not wearing any gloves or masks. We have not been told anything else.
I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Idowu by telephone on March 27, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
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Case 1:20-cv-00480-JEJ Document 33-4 Filed 03/27/20 Page 1 of 2
Exhibit 23

Case 1:20-cv-00480-JEJ Document 33-4 Filed 03/27/20 Page 2 of 2

Supplemental Declaration of Meiling Lin 1) My name is Meiling Lin. I submitted a declaration in support of a multi-plaintiff petition for a
writ of habeas corpus in federal court based on risks that I and others face because of COVID-19.
1) Since submitting my declaration, things have gotten worse. I feel sick to my stomach because of the fear that I have. I have no appetite and am having trouble sleeping because of my worry.
2) A few days ago a nurse came and called me and a few others out. We were taken out of the block area and had our temperatures taken. I don’t know why this was done but they did not take everyone's temperatures. They let me go back to my block.
3) Yesterday, March 26, I heard from another detainee here that there are sick people in a block with men. I heard that there are two people being quarantined. I don’t know if they have COVID-19 but I know everyone here is very scared from the news.
4) I also noticed yesterday that someone was in the building who was wearing a mask and protective gear--I do not know who this was but it made me scared because I feel like this means there must be someone in this jail with COVID-19.
5) I don’t speak or understand English so I don’t know more than that but I can tell that everyone feels bad about the situation and they want to get out. I am terrified too.
6) I have not committed any crimes, and I just want to be able to live peacefully with my daughter and her family. Please let me out.
I, Muneeba S. Talukder, certify that I reviewed this declaration with Meiling Lin over video on March 27, 2020. I also certify that I used professional interpretation service for Mandarin in order to read the declaration to Meiling Lin in English and that she certified that the declaration was true and correct to the best of her knowledge.

Dated: March 27, 2020

/s/ Muneeba S. Talukder Muneeba S. Talukder (CA 326394) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 33-5 Filed 03/27/20 Page 1 of 2
Exhibit 24

Case 1:20-cv-00480-JEJ Document 33-5 Filed 03/27/20 Page 2 of 2
Declaration of Maggie Kopel 1) My name is Maggie Kopel and I am Legal Fellow with Nationalities Service Center
(NSC) in Philadelphia, PA. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus in federal court based on risks that vulnerable detainees face because of COVID-19.
2) Plaintiff Mayowa Abayaomi Oyediran is my client and I am representing him in his immigration case.
3) Mr. Oyediran and I spoke on March 27, 2020. During this call he told me that he was once again moved from his block because people in his block were sick. These people had to be quarantined. This is the second time he has been moved from one block to another because of sick detainees.
4) Mr. Oyediran also told me that he is unaware of detainees or correctional officers being tested for COVID-19 even though many people are sick.

I, Maggie Kopel, certify that this declaration is true and correct to the best of my knowledge.

Dated: March 27, 2020

/s/ Maggie Kopel Maggie Kopel, Esq. Nationalities Service Center 1216 Arch Street, 4th Floor Philadelphia, PA 19107 (215) 609-1546 Mkopel@nscphila.org

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Case 1:20-cv-00480-JEJ Document 33-6 Filed 03/27/20 Page 1 of 2
Exhibit 25

Case 1:20-cv-00480-JEJ Document 33-6 Filed 03/27/20 Page 2 of 2

Supplemental Declaration of Courtney Stubbs
1. Today, March 27, someone on my block went to medical around 5pm. They serve dinner at 6pm. When I came back from medical I noticed that he was served dinner in his cell. This is not normal and I have not seen this before.
2. We do not know what is going on with him but he looks sick. He is allowed outside his cell though. I saw him put something in the microwave. I also saw him put his hand on his forehead, like he was checking to see if he had a fever. He was drinking tea, like when you have a sore throat. He was also blowing his nose.
3. I heard yesterday (March 26, 2020) that A block, which is the women’s block, is on quarantine. They will not tell us why.
4. I talked with a nurse earlier this week. She had said she would send a letter to ICE about seeing if I could be released because she knows all about my medical conditions. She said she sent the letter. I asked her what ICE said, and she said, “you know how they are.”
5. They started checking our temperatures earlier this week, but they will not tell us why. There have been no other changes. We are still triple celled and eat in communal spaces close to one other. I cannot be six feet away from anyone.
6. I am nervous and scared. If I get sick with COVID-19 I will be in real trouble. My immune system is no good.

I, Vanessa L. Stine, certify that I reviewed this declaration with Mr. Stubbs by telephone on March 27, 2020 and that he certified that the declaration was true and correct to the best of his knowledge.

Dated: March 27, 2020

/s/ Vanessa L. Stine Vanessa L. Stine AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org

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Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 1 of 14
Exhibit 26

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 2 of 14
DECLARATION OF ROBERT GREIFINGER
I, Robert Greifinger, declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746 as follows:
Background
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
The Inevitable Spread of COVID-19 in ICE Detention
3. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
4. ICE will not be able to stop the spread of COVID-19 within its facilities. It is likely that COVID-19 is already within ICE facilities. We know of at least one ICE staff member in New Jersey who has tested positive for COVID-19.2 It is difficult to capture the full extent of the problem because of a lack of testing and the fact that many people who are infected with COVID-19 are asymptomatic for days before showing the symptoms associated with the disease.
5. ICE is not set up to be able to contain the disease once it is inside of its facilities. This is due to both the realities of an infectious disease within the tight confines of a detention center and the history of inadequate health care that ICE has provided to detainees. The
1 Farah M. Parvez, Mark N. Lobato & Robert B. Greifinger, Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities, J. OF CORRECTIONAL HEALTH CARE 239 (2010), doi:10.1177/1078345810367593. 2 Hamed Aleaziz, A Medical Worker at an ICE Detention Facility for Immigrants Has Tested Positive for the Coronavirus, BUZZFEED NEWS (Mar. 19, 2020 8:17 PM), https://www.buzzfeednews.com/article/hamedaleaziz/ice-medical-worker-coronavirus.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 3 of 14
CDC has warned detention centers to plan for staffing shortages due to the impact of COVID-19 on detention center staff.3 The COVID-19 crisis only exacerbates ICE’s longstanding struggle to maintain adequately staffed facilities.
6. One of the few means of preventing a COVID-19 infection is through social distancing— that is maintaining distance of at least six feet between individuals so as not to unintentionally spread the virus to others. This is nearly impossible in a detention center, where crowding of individuals is commonplace. Take the sally-port or control port, for example. This is a series of two locked gates that brings all staff and detained persons past a guard in a window control room. These areas often become severely crowded, especially during shift changes for staff or leading up to count for the detained people. In this context, close contact is unavoidable and creates a breeding ground for COVID-19 infection. These sally-ports are also a focal point for staff to transfer keys, radios, and other equipment through a hand to hand transaction, intensifying the risk of infection to staff members. To run a detention facility is to facilitate close contact and movement between and amongst individuals—whether it be for meals or medical appointments, as examples. Sanitation security measures available in hospital settings are simply impossible to apply in a corrections context.
7. There is no change in procedure that can alleviate these concerns. Approaches like solitary confinement or keeping individuals locked into their cell more hours of the day will make the problem worse. These approaches are psychologically damaging to detained people and may lead to a spike in severe depression, attempted and completed suicides, and medical emergencies. In the context of an outbreak in the facility, when onsite medical staff are operating at or over capacity, the problems can accelerate.
8. In addition to social distancing, another key measure to prevent the spread of COVID-19 is frequent and thorough hand washing. Handwashing stations are often few and far between in detention centers. Many facilities do not have handwashing stations that allow water to be turned on and remain on. Instead, the faucets automatically shut off after a period of time, making it nearly impossible to wash one’s hands for the recommended twenty seconds.
9. In addition to these challenges, ICE has failed to adequately respond to the COVID-19 pandemic. Both the March 6, 2020 interim guidance sheet4 produced by ICE Health Services Corps, the body that oversees ICE detention facilities’ medical care, and ICE’s
3 Center for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC.GOV (last updated Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html#social_distancing. 4 ICE Health Service Corps, Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19) (Mar. 6, 2020), https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 4 of 14
guidance on its website5 are wholly insufficient to adequately face the crisis at hand. They fail in these ways:
a. The protocol focuses on travel contacts, instead of community spread. Questions focus on detainee’s recent travel history. This misses the mark. At this point in the course of the virus, nearly everyone who is not practicing social distancing is in contact with someone who has the virus. The correct focus is monitoring active symptoms, including fever and interaction with sick individuals upon entry into the ICE facility, including sick detained people and staff. Staff is an especially important vector in this outbreak. Since they go back and forth between the outside world, detention centers will be hit by COVID-19 when the rest of the community is, staff and their families included.
b. The ICE protocol does not follow the measures in the CDC guidelines for long term care facilities. Specifically, it does not ensure access to hand sanitizer nor does it provide masks for individuals with a cough.
c. The ICE protocol does not provide guidance on how to deal with surge capacity, which will almost certainly be necessary as the number of cases in the detention facility increase and the number of healthy staff to treat detained people decreases.
d. There is no guidance on when to test detained people. There needs to be daily updates from ICE leadership to medical staff disseminating criteria for testing in this rapidly changing environment. Epidemiologists working in conjunction with local and Federal COVID-19 responders must be part of the decision-making process guiding this daily protocol.
e. The protocol does require people with suspected COVID-19 close contacts to be monitored for 14 days for symptoms. However, nearly every person who newly arrives at the detention facility will have had close contact to someone with COVID-19. The detention facility’s medical unit simply cannot handle the volume of patients that would need this level of monitoring. There needs to be significantly more facilities and staffing to meet these needs, but, to my knowledge, ICE has not made the appropriate changes to accommodate such a level.
f. There is no guidance in the protocol to identify high-risk patients or steps to protect them from contracting COVID-19. The plan needs to include an improved intake process, cohorted housing areas for high risk patients, increased infection control measures, and increased medical surveillance, including daily checks for signs and symptoms. Social distancing of six feet, as recommended by the CDC, will be impossible in all ICE facilities, especially in light of the common practice of facility lockdowns.
5 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19, ICE.GOV (last updated Mar. 27, 2020), https://www.ice.gov/covid19.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 5 of 14
g. There are no clear criteria for hospital transfer. As clinical staff have no experience with this disease, ICE should develop rational clinical criteria for transfer to an acute care hospital. established guidelines for when transfer to a hospital is appropriate.
10. The ICE response envisions using isolation rooms to monitor individuals with COVID-19 symptoms. However, many facilities only have 1-4 of these rooms available in the facility. There will be many more than 1-4 people with COVID-19 in the detention center. Instead, ICE must create entire housing units reserved for people with COVID-19 symptoms, so that symptomatic patients can live separately from those who are asymptomatic or at risk. Because of how full ICE facilities are, this will be nearly impossible.
11. Isolation is not a proper solution for people without symptoms or confirmed disease. Detainees who are isolated are monitored less frequently. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that these detained people will attempt suicide or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and detained people—in the form of increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19.
12. Transferring individuals between facilities, a common ICE practice, is medically inappropriate during the outbreak. ICE does not have the staffing needed to monitor the transferred patients for the appropriate 14-day period to check for symptoms.
13. ICE must release all people with risk factors to prevent serious illness including death. ICE’s response has made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become symptomatic. This will lead to unnecessary illness and death for the people most vulnerable to this disease. ICE is walking willingly into a preventable disaster by keeping high-risk and vulnerable patients in detention facilities during the rapid spread of COVID-19.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 27th day in March 2020 in New York City, New York.
Robert B. Greifinger, M.D.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 6 of 14
ROBERT B. GREIFINGER, M.D.

380 Riverside Drive, Apt 4F New York, New York 10025

(646) 559-5279 bob@rgreifinger.com

Physician consultant with extensive experience in development and management of complex community and institutional health care programs. Demonstrated strength in leadership, program development, negotiation, communication, operations and the bridging of clinical and public policy interests. Teacher of health and criminal justice.

SUMMARY OF EXPERIENCE
MEDICAL MANAGEMENT AND QUALITY IMPROVEMENT SERVICES 1995-Present
Consultant on the design, management, operations, quality improvement, and utilization management for correctional health care systems.
•   Recent clients include (among others) the U.S. Department of Justice Civil Rights Division, monitoring multiple correctional systems and the U.S. Department of Homeland Security Office of Civil Rights and Civil Liberties. Federal court monitor for the Metropolitan Detention Center, Albuquerque, New Mexico, Orleans Parish Sheriff’s Office, New Orleans, Louisiana, and MiamiDade Corrections and Rehabilitation Department.
•   National Commission on Correctional Health Care. Principal Investigator for an NIJ funded project to make recommendations to Congress on identifying public health opportunities in soon-to-bereleased inmates.
•   Associate Editor, Puisis M (ed), Clinical Practice in Correctional Medicine, Second Edition, St. Louis. Mosby 2006.
•   Editor, Greifinger, RB (ed), Public Health Behind Bars: From Prisons to Communities, New York. Springer 2007.
•   John Jay College of Criminal Justice. Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow 2005 – 2016.
•   Co-Editor, International Journal of Prison Health 2010 – 2016.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

1989 - 1995

Operating budget of $1.4 Billion. Responsible for inmate safety, program, and security. Sixty-nine facilities housing over 68,000 inmates with 30,000 employees.

Deputy Commissioner/Chief Medical Officer, 1989 - 1995

•   Operating budget of $140 million; health services staff of 1,100. Accountable for inmate health services and public health. Directed major initiatives in policy and program development, quality and utilization management.

•   Developed and implemented comprehensive program for HIV prevention, surveillance, education, and treatment in nation's largest AIDS medical practice.

•   Managed the rapid implementation of an infection control program responding to a major outbreak of multidrug-resistant tuberculosis. Helped bring the nation's tuberculosis epidemic to public attention.

•   Developed $360 million five-year capital plan for inmate health services. Opened the first of five regional medical units for multispecialty ambulatory and long-term care.

•   Implemented a centralized and regional pharmacy system, improving quality, service and cost management.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 7 of 14
ROBERT B. GREIFINGER, M.D.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1985 - 1989

A major academic medical center with 8,000 employees and annual revenue of $500 million.

Vice President, Health Care Systems, 1986 - 1989

Director, Alternative Delivery Systems, 1985 - 1986

Operating budget of $60 million with 1,100 employees. Managed a multi-specialty group, a home health agency, and prison health programs.

•   Negotiated contracts, including bundled service, risk capitation, fee-for-service arrangements, and major service contracts. Developed a high technology home care joint venture.

•   Taught epidemiology and health care organization at Albert Einstein College of Medicine. Lectured nationally on health care delivery and managed care.

•   Conceived and collaborated in development of a consortium of six academic medical centers, leading to a metropolitan area-wide, joint venture HMO. Organized a network of physicians to contract with HMO's preparing for cost-containment.

WESTCHESTER COMMUNITY HEALTH PLAN, White Plains, NY

1980 - 1985

Independent, not-for-profit, staff-model HMO, acquired by Kaiser-Permanente in 1985. Operating revenue $17 million with 200 employees and 27,000 members.

Vice President and Medical Director

Chief medical officer and COO. Managed the delivery of comprehensive medical services. Accountable to the Board of Directors for quality assurance and utilization management. Practiced pediatrics.

•   Accomplished turnaround with automated utilization management, improved service, sound personnel management principles, and quality management programs.

•   Implemented performance based compensation program.

COMMUNITY HEALTH PLAN OF SUFFOLK, INC.

1977 - 1980

Community based, not-for-profit, staff model HMO, with enrollment of 18,000.

Medical Director

•   Developed and operated clinical services. Accountable for quality of care. Practiced clinical pediatrics, and taught community health and medical ethics at SUNY Stony Brook School of Medicine.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1976 - 1977

Residency Program in Social Medicine, Deputy Director, 1976-1977

Unique clinical training program focused on community health and change agentry. Developed curriculum and supervised 40 residents in internal medicine, pediatrics and family medicine.

UNITED STATES PUBLIC HEALTH SERVICE

1972 - 1974

Commissioned officer in the National Health Service Corps. Functioned as medical director and family physician in a federally funded neighborhood health center in Rock Island, Illinois. Honorable Discharge.

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 8 of 14
ROBERT B. GREIFINGER, M.D.

FACULTY APPOINTMENTS
1976 - 2002 Assistant Professor of Epidemiology and Social Medicine, Albert Einstein College of Medicine
2005 - 2016 Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow, John Jay College of Criminal Justice

NATIONAL COMMITTEE FOR QUALITY ASSURANCE

Worked with NCQA since its inception in 1980. Began training surveyors in 1989, and continued as faculty for NCQA sponsored educational sessions. Served for six years as a charter member of the Review Oversight (accreditation) Committee. Served on the Reconsideration (appeals) Committee for six years. Surveyed dozens of managed care organizations, and reviewed several hundred quality management programs.

OTHER PROFESSIONAL ACTIVITIES

2012 – present Member, Board of Directors, Prison Legal Services, New York

2012 – present Member, Board of Directors, National Health Law Program

2011 – 2015 Member, Board of Directors, Academic Consortium of Criminal Justice Health

2010 - 2016 Co-editor, International Journal of Prisoner Health

2009

Recipient, B. Jaye Anno Award for Lifetime Achievement in Communication

2007-2015 Member, National Advisory Group on Academic Correctional Health Care

2007

Recipient, Armond Start Award, Society of Correctional Physicians

2005 - 2011 Member, Advisory Board to the Prisoner Reentry Institute, John Jay College

2002 - present Member, Editorial Board, Journal of Correctional Health Care

2002 - present Peer reviewer for multiple journals, including Journal of Correctional Health Care, International Journal of Prison Health, Journal of Urban Health, Journal of Public Health Policy, Annals of Internal Medicine, American Journal of Public Health, Health Affairs, and American Journal of Drug and Alcohol Abuse.

2001 - 2003 Member, Advisory Board to CDC on Prevention of Viral Hepatitis in Correctional Facilities

1999 - 2003 Member, Advisory Board to CDC on Prevention and Control of Tuberculosis in Jails

1997 - 2003 1997 - 2001

Member, Reconsideration Committee, NCQA
Moderator, Optimal Management of HIV in Correctional Systems, World Health Communications

1997 - 2000 Member, Reproductive Health Guidelines Task Force, CDC

1993 - 1995 Co-chair, AIDS Clinical Trial Community Advisory Board, Albany Medical Center 1992 - Present Society of Correctional Physicians

1991 - 1997 Member, Review Oversight (accreditation) Committee, NCQA

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 9 of 14
ROBERT B. GREIFINGER, M.D.
1983 - 1985 Executive Committee, Medical Directors' Division, Group Health Association of America (Secretary, 1984-1985) EDUCATION
University of Pennsylvania, College of Arts and Sciences, Philadelphia; B.A., 1967 (Amer. Civilization) University of Maryland, School of Medicine, Baltimore; M.D., 1971 Residency Program in Social Medicine (Pediatrics), Montefiore Medical Center, Bronx, NY; 1971-1972,
1974-1976, Chief Resident 1975-1976
CERTIFICATION Diplomate, National Board of Medical Examiners, 1971 Diplomate, American Board of Pediatrics, 1976 Fellow, American Academy of Pediatrics, 1977 Fellow, American College of Physician Executives, 1983 Fellow, American College of Correctional Physicians (formerly Society of Correctional Physicians), 2000 License: New York, Pennsylvania (inactive)

Case 1:20-cv-00480-JEJ Document 33-7 Filed 03/27/20 Page 10 of 14
ROBERT B. GREIFINGER, M.D.

PUBLICATIONS

Updated February 2018

Greifinger RB, A Summer Program in Life Sciences. Journal of Medical Education 1970; 45: 620-622.
Greifinger RB, Sidel VW, American Medicine - Charity Begins at Home. Environment 1977; 18(4): 718.
Greifinger RB, An Encounter With the System. The New Physician 1977; 26(9): 36-37.
Greifinger RB, Sidel VW, Career Opportunities in Medicine. In Tice's(eds) Practice of Medicine. Hagerstown: Harper & Row 1977; 1(12): 1-49.
Greifinger RB, Grossman RL, Toward a Language of Health. Health Values 1977; 1(5): 207-209.
Grossman RL, Greifinger RB, Encouraging Continued Growth in the Elderly. In Carnevali DL & Patrick M (eds), Nursing Management for the Elderly. Philadelphia: Lippincott 1979: 543-552.
Greifinger RB, Jonas S, Ambulatory Care. In Jonas S (ed), Health Care Delivery in the United States (second edition). New York: Springer 1980: 126-168.
Greifinger RB, Toward a New Direction in Health Screening. In Health Promotion: Who Needs It? Washington: Medical Directors Division, Group Health Association of America 1981: 61-67.
Greifinger RB, Sidel VW, American Medicine. In Lee, Brown & Red (eds), The Nation's Health. San Francisco: Boyd & Fraser 1981: 122-134.
Greifinger RB, Bluestone MS, Building Physician Alliances for Cost-Containment. Health Care Management Review 1986: 63-72.
Greifinger RB, An Ethical Model for Improving the Patient-Physician Relationship. Chicago: Inquiry 1988: 25(4): 467-468.
Glaser J, DeCorato DR, Greifinger RB, Measles Antibody Status of HIV-Infected Prison Inmates. Journal of Acquired Immunodeficiency Syndrome 1991; 4(5): 540-541.
Ryan C, Levy ME, Greifinger RB, et al, HIV Prevention in the U.S. Correctional System, 1991. MMWR 1992; 41(22): 389-397.
Greifinger RB, Keefus C, Grabau J, et al, Transmission of Multidrug- resistant Tuberculosis Among Immunocompromised Persons in a Correctional System. MMWR 1992; 41(26): 509-511.
Greifinger RB, Tuberculosis Behind Bars, in Bruce C Vladeck ed, The Tuberculosis Revival: Individual Rights and Societal Obligations In a Time of AIDS. New York: United Hospital Fund 1992: 5965.
Bastadjian S, Greifinger RB, Glaser JB. Clinical characteristics of male homosexual/bisexual HIVinfected inmates. J AIDS 1992;5:744-5.
Glaser JB, Greifinger R. Measles antibodies in HIV-infected adults. J Infect Dis. 1992 Mar;165(3):589.
Glaser J, Greifinger RB, Correctional Health Care: A Public Health Opportunity. Annals of Internal Medicine 1993; 118(2): 139-145.
Greifinger RB, Glaser JG and Heywood NJ, Tuberculosis In Prison: Balancing Justice and Public Health, Journal of Law, Medicine and Ethics 1993; 21 (3-4):332-341.

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ROBERT B. GREIFINGER, M.D.
Valway SE, Greifinger RB, Papania M et al, Multidrug Resistant Tuberculosis in the New York State Prison System, 1990-1991, Journal of Infectious Disease 1994; 170(1):151-156.
Wolfe P, Greifinger RB, Prisoners in Service of Public Health: Focus New York State. New York Health Sciences Journal 1994 1(1):35-43.
Valway SE, Richards S, Kovacovich J, Greifinger RB et al, Outbreak of Multidrug-Resistant Tuberculosis in a New York State Prison, 1991. American Journal of Epidemiology 1994 July 15; 140(2):113-22.
Smith HE, Smith LD, Menon A and Greifinger RB, Management of HIV/AIDS in Forensic Settings, in Cournos F(ed), AIDS and People with Severe Mental Illness: A Handbook for Mental Health Professionals. New Haven: Yale Press 1996.
Greifinger RB, La Plus Ca Change . . . ., Public Health Reports 1996 July/August; 111(4):328-9.
Greifinger RB, TB and HIV, Health and Hygiene 1997;18,20-22.
Greifinger RB, Horn M, “Quality Improvement Through Care Management,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Glaser JM, “Desmoteric Medicine and the Public’s Health,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Commentary: Is It Politic to Limit Our Compassion? Journal of Law, Medicine & Ethics, 27(1999):213-16.
Greifinger RB, Glaser JG and Heywood NJ, “Tuberculosis In Prison: Balancing Justice and Public Health,” chapter in Stern V (ed), Sentenced to die? The problem of TB in prisons in Eastern Europe and Central Asia, London: International Centre for Prison Studies, 1999.
Greifinger RB (Principal Investigator). National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/pubs_stbr.html.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report5_Kraut.pdf.
Hornung CA, Greifinger RB, and Gadre S, A Projection Model of the Prevalence of Selected Chronic Diseases in the Inmate Population. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report3_Hornung.pdf.
Hornung CA, Anno BJ, Greifinger RB, and Gadre S, Health Care for Soon-to-be-Released Inmates: A Survey of State Prison Systems,” National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report1_Hornung.pdf.
Patterson RF & Greifinger RB, Insiders as Outsiders: Race, Gender and Cultural Considerations Affecting Health Outcome After Release to the Community, Journal of Correctional Health Care 10:3 2003; 399-436.
Howell E & Greifinger RB, What is Known about the Cost-Effectiveness of Health Services for Returning Inmates? Journal of Correctional Health Care 10:3 2003; 437-455.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails, J Urban Health:

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ROBERT B. GREIFINGER, M.D.
Bulletin of the New York Academy of Medicine 2004: 81(3):453-471. (Finalist, Charles C. Shepard Science Award)
Greifinger RB. Health Status in U.S. and Russian Prisons: More in Common, Less in Contrast. Journal of Public Health Policy 2005 26:60-68. http://www.palgrave-journals.com/cgitaf/DynaPage.taf?file=/jphp/journal/v26/n1/full/3200003a.html&filetype=pdf
Greifinger RB. Health Care Quality Through Care Management, M. Puisis (ed). Clinical Practice in Correctional Medicine, Second Edition. St. Louis. Mosby 2006: pp. 510-519.
Greifinger RB. Pocket Guide Series on tuberculosis, HIV, MRSA, sexually transmitted disease, viral hepatitis and management of outbreaks. See http://www.achsa.org/displaycommon.cfm?an=1&subarticlenbr=23
Greifinger RB. Inmates are Public Health Sentinels. Washington University Journal of Law and Policy. Volume 22 (2006) 253-64.
Greifinger RB. Disabled Prisoners and “Reasonable Accommodation.” Journal of Criminal Justice Ethics. Winter Spring 2006: 2, 53-55.
Mellow J, Greifinger RB. Successful Reentry: The Perspective of Private Health Care Providers. Journal of Urban Health. November 2006 doi:10.1007/s11524-006-9131-9.
Mellow J, Greifinger RB. The Evolving Standard of Decency: Post-Release Planning? Journal of Correctional Health Care January 2008 14(1):21-30.
Williams B, Greifinger RB. Elder Care in Jails and Prisons: Are We Prepared? Journal of Correctional Health Care January 2008 14(1):4-5.
Greifinger RB (editor). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Greifinger RB. Thirty Years Since Estelle v. Gamble: Looking Forward Not Wayward. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Patterson RF, Greifinger RB. Treatment of Mental Illness in Correctional Settings. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
MacDonald M, Greifinger RB. and Kane D. Use of electro-muscular disruption devices behind bars: Progress or regress. Editorial',International Journal of Prisoner Health,4:4,169 — 171. 2009.
Hoge SK, Greifinger RB, Lundquist T, Mellow J. Mental Health Performance Measurement in Corrections. International Journal of Offender Therapy and Criminology, 53:6 634-47, 2009. Abstract accessed January 12, 2010 at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=251100.
Williams BA, Lindquist K . . . Greifinger RB et al. Caregiving Behind Bars: Correctional Officer Reports of Disability in Geriatric Prisoners. J Am Geriatr Soc 57:1286–1292, 2009.
Baillargeon J, Williams B . . . Greifinger RB, et al. Parole Revocation among Prison Inmates with Psychiatric and Substance Use Disorders. Psychiatric Services 60:11: 1516-21, 2009.
Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593.
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. Am J Public Health. Nov 2010; 100: 2103 - 2110.
Blair P, Greifinger R, Stone TH, & Somers S. Increasing Access to Health Insurance Coverage for Pretrial Detainees and Individuals Transitioning from Correctional Facilities Under the Patient

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ROBERT B. GREIFINGER, M.D.
Protection and Affordable Care Act. American Bar Association. Accessed on March 23, 2011 at http://www.cochs.org/files/ABA/aba_final.pdf
Williams BA, Sudore RL, Greifinger R, Morrison RS. Balancing Punishment and Compassion for Seriously Ill Prisoners. Ann Int Med 2011; 155:122-126.
Weilandt C, Greifinger RB , Hariga F. HIV in Prison: New Situation and Risk Assessment Toolkit. Int. J. Prisoner Health 2011; 7(2/3):17-22.
Williams, B., Stern, M., Mellow, J., Safer, M., Greifinger, RB. Aging in correctional custody: Setting a policy agenda for older prisoner health. Am J Public Health. Published online ahead of print June 14, 2012: e1– e7. doi:10.2105/AJPH.2012.300704.
Greifinger, RB. Independent review of clinical health services for prisoners. Int. J. Prisoner Health 2012; 8(3/4):141-150.
Greifinger RB. Facing the facts, Int J Prisoner Health, Vol. 8 (3/4) (editorial).
Greifinger, RB. The Acid Bath of Cynicism. Correctional Law Reporter June/July 2013: 3, 14, 16.
Ahalt C, Trestman RL, Rich JD, Greifinger RB, Williams BA. Paying the price: the pressing need for quality, cost and outcomes data to improve correctional healthcare for older prisoners. J Am Geriatr Soc 61:2013– 2019, 2013.
Williams BA, Ahalt C, Greifinger RB. The older prisoner and complex medical care. Chapter in WHO guide Prisons and Health. WHO Copenhagen. 2014: 165-170.
Rich JD, Chandler R . .. . Greifinger RB et al. How health care reform can transform the health of criminal justice-involved individuals. Health Affairs 33, No. 3(2014: -
Allen SA, Greifinger RB. Asserting Control: A Cautionary Tale. International Journal of Prisoner Health 11:3, 2015.
Junod V, Wolff H, Scholten W, Novet B, Greifinger R, Dickson C & Simon O. Methadone versus torture: The perspective of the European Court of Human Rights. Heroin Addict Relat Clin Probl. Heroin Addict Relat Clin Probl 2018; 20(1): 31-36.
Pont J, Enggist S, Stover H, Williams B, Greifinger R, Wolff H. Prison Health Care Governance: Guaranteeing Clinical Independence. Published online ahead of print February 22, 2018.
ABSTRACTS & RESEARCH PRESENTATIONS Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates
With AIDS. Florence: Seventh International Conference on AIDS 1991 (poster session).
Sherman M, Coles B, Buehler J, Greifinger RB, Smith P, The HIV Epidemic in Inmates. Atlanta: Centers for Disease Control. 1991
Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates With AIDS, American Public Health Association. 1991 (poster session)
Mikl J, Smith P, Greifinger RB, Forte A, Foster J, Morse D, HIV Seroprevalence of Male Inmates Entering the New York State Correctional System. American Public Health Association. 1991 (poster session)
Valway SE, Richards S, Kovacovich J, Greifinger R, Crawford J, Dooley SW. Transmission of Multidrug-resistant Tuberculosis in a New York State Prison, 1991. Abstract No 15-15, In: World Congress on TB Program and Abstracts, Washington, D.C., November, 1992.

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ROBERT B. GREIFINGER, M.D.
Mikl J, Smith PF, Greifinger RB, HIV Seroprevalence Among New York State Prison Entrants. Ninth International Conference on AIDS 1993 (Poster Session)
Hornung CA, Greifinger RB, McKinney WP. Projected Prevalence of Diabetes Mellitus in the Incarcerated Population. J Gen Int Med 14 (Supplement 2):40, April 1999.

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Exhibit 27

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DECLARATION OF DR. DORA SCHRIRO
I, Dora Schriro, declare as follows:
Background and Qualifications
1. I am a career public servant who has served as an executive-level administrator, policy maker, and homeland security advisor. I was appointed to lead a number of city and state agencies and a federal office.
2. I was the Commissioner of the Connecticut Department of Emergency Services and Public Protection encompassing six state agencies including the Connecticut State Police and Homeland Security and Emergency Management, from 2014 through 2018. I served concurrently as Connecticut’s Homeland Security Advisor from 2016 through 2018. My Department of Homeland Security (DHS) security clearance was Top Secret. During my tenure as Director, we grappled with Ebola and through our Division of Emergency Management and Homeland Security, I developed a protocol specifically for first responders – including the Connecticut State Police, all the state’s local Police Departments, career and volunteer fire fighters and other first responders, all of whom we served through the Department’s six divisions including the Connecticut State Police, Police Officer Standards and Training (POST), the Connecticut Fire Academy, Emergency Management and Homeland Security, Scientific Services (the state’s crime lab), and Statewide Telecommunications. Additionally, as the state’s Homeland Security Advisor, I interfaced with many of the Department of Homeland Security offices and agencies on an ongoing basis including the Federal Emergency Management Agency with which we had an active and ongoing partnership.
3. I was Senior Advisor to Department of Homeland Security (DHS) Secretary Janet Napolitano on U.S. Immigration and Customs Enforcement (ICE) Detention and Removal, and the founding Director of the ICE Office of Detention Policy and Planning in 2009. During my tenure, I authored the Report on ICE Detention Policies and Practices: A Recommended Course of Action for Systems Reform. My report included a number of recommendations specific to risk assessments, the continuum of control, and alternatives to detention. At the invitation of DHS Secretary Jeh Johnson, I also served in 2015 and 2016 as a member of the DHS Advisory Committee on Family Residential Facilities and co-authored its report.
4. I was the Commissioner of two city jail systems: the St. Louis City Division of Corrections and included the St. Louis City Police Department Prisoner Intake Facility from 2001 to 2003, and the New York City (NYC) Department of Correction from 2009 to 2014. I was also the Warden of the Medium Security Institution, a jail in St. Louis City, Missouri, from 1989 to 1993. During my tenure as Warden, I routinely released pretrial inmates, conditioned upon daily check-in and random drug testing, to comply with a court-ordered facility population cap. During my tenure as Commissioner of the NYC Department of
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Correction, I opened NYC’s first centralized reception and diagnostic facility in which comprehensive risk assessment, custody classification, and gang identification were completed, and discharge planning was initiated. I also created pre-trial and post-plea diversion opportunities for the mentally ill and seriously mentally ill jail population and special housing for the young adult population. During an earlier appointment to the NYC Department of Correction as Assistant Commissioner for Programs Services from 1985 to 1989, I also oversaw the city’s work release program for pre-trial and city-sentenced inmates.
5. I was the Director of two state correctional systems, the Missouri Department of Corrections encompassing state prisons, probation, and parole, from 1993 to 2001, and the Arizona Department of Corrections encompassing state prisons and parole, from 2003 to 2009. During my tenure as Director of the Arizona Department of Corrections, the department was the first correctional system to be selected Winner of the Innovations in American Government awards program, for a prison-based reform we named Parallel Universe—pre-release preparation in which all inmates participated from the first to the last day of their incarceration guided by norms and values closely mirroring those of the community. As Director of the Missouri Department of Corrections, I also served on the state’s Sentencing Commission.
6. I was a member of the adjunct faculties of University of Missouri-St. Louis Department of Criminology from 1990 to 1998, St. Louis University School of Law from 2000 to 2002, and Arizona State University Sandra Day O’Connor School of Law from 2005 to 2008, during which time I taught graduate-level Criminology and Correctional Law courses and led Sentencing Seminars.
7. I have served continuously on the Women’s Refugee Commission since 2012, and the American Bar Association (ABA) Commission on Immigration since 2014.
8. I am knowledgeable about both the American Correction Association and ICE Performance-Based National Detention Standards, including Classification Systems and Special Management Units standards, both of which are premised on objective, evidence-based risk assessments and the least restrictive housing and community-based assignments consistent with those assessments. I have also participated in the development of American Bar Association (ABA) professional standards for both correctional systems and ICE detention facilities. I am familiar with the California Board of State and Community Corrections Title 15 Minimum Standards for Local Detention Facilities. I am also familiar with bond procedures in state, federal, and immigration courts.
9. I am knowledgeable about the operation of civil detention and criminal pre-trial and sentenced correctional facilities, and the individuals in the custody of both systems.
10. I have served as a Corrections expert to the California Department of Justice, Disability Rights California, and the Hampton County, Massachusetts Sheriff’s Department. I am currently
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engaged by the California Department of Justice, the American Civil Liberties Union, the Southern Poverty Justice Center, and the St. Louis University School of Law Legal Clinics.
11. I also served as the Executive Director of Planned Parenthood of Bergen County, New Jersey and was a supervising social worker for the Franklin Public Schools in Franklin, Massachusetts.
12. A complete and correct Resume, which includes a list of my publications from the last ten years, is attached as Appendix A.
FINDINGS AND CONCLUSIONS
13. According to the World Health Organization, COVID-19 has reached pandemic status.1 There is no vaccine to prevent transmission, and there is no cure for COVID-19.2 The World Health Organization, the Centers for Disease Control and Prevention, and other public health experts recommend the use of social distancing and other preventive strategies to control the virus.3 The Vera Institute of Justice and Community-Oriented Correctional Health Services further recommend that authorities in correctional and immigration detention settings “[u]se their authority to release as many people from their custody as possible.”4
14. Conditions in immigration detention facilities place people in close contact with one another and allow disease to spread freely. Immigration detention facilities often operate at or above capacity. Detained people live in very close quarters where they eat in congregate settings, sleep in beds very near one another, and recreate in large groups in small areas. In the course of a day, they can be staged in multi-person holding tanks and waiting rooms in Intake, the Medical Unit, and other areas, escorted as whole housing units, transported en masse in buses, and routinely eaten their meals together, none of them circumstances under which individuals are able to maintain social distancing of at least six feet, as recommended by public health experts.
15. Sanitation practices at immigration detention facilities generally do little to curb the spread of illness. Issuance of cleaned clothing, sheets, towels, and blankets are regulated, and the quantity
1 European Regional Office, WHO announces COVID-19 outbreak a pandemic, WHO (Mar. 12, 2020), http://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/whoannounces-covid-19-outbreak-a-pandemic. 2 Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, https://www.cdc.gov/coronavirus/2019ncov/cases-updates/summary.html (last updated Mar. 21, 2020). 3 Coronavirus disease advice for the public, WHO, https://www.who.int/emergencies/diseases/novel-coronavirus2019/advice-for-public (last updated Mar. 18, 2020); How to Protect Yourself, CDC (2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (last updated Mar. 18, 2020); Saralyn Cruickshank, Now is not the time to ease social distancing measures, experts say, THE HUB AT JOHNS HOPKINS UNIVERSITY (Mar. 24, 2020), https://hub.jhu.edu/2020/03/24/no-time-to-ease-social-distancing/. 4 COMMUNITY-ORIENTED CORRECTIONAL HEALTH SERVICES & VERA INSTITUTE OF JUSTICE, GUIDANCE FOR PREVENTIVE AND RESPONSIVE MEASURES TO CORONAVIRUS FOR JAILS, PRISONS, IMMIGRATION DETENTION AND YOUTH FACILITIES 2 (Mar. 18, 2020), https://cochs.org/files/covid-19/covid-19-jails-prison-immigration.pdf.
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of each item in a detainee’s possession at any time limited in number. As a rule, the beds, mattresses, and personal property containers are not sanitized between detainees’ assignments. Detainees are responsible for cleaning their own living areas. They are also employed by the facility as porters to clean common areas including their dayrooms and restrooms, facility corridors, the medical unit, recreation areas, kitchen, mess hall, chapel, and law library. In both capacities, usually they perform these duties without any training, and are provided only limited supervision, cleaning materials and supplies, and no protective gloves, glasses, and gowns or coveralls.5
16. Objects with which many detainees come in contact frequently—notably, the phones, tables and chairs, paperback books, decks of cards and board games, and other high-touch surfaces in the housing units—are not sanitized or replaced routinely. Similarly, the equipment issued in recreation areas, the kiosks and other furnishing and equipment in the law library, and the various staging and holding areas in Intake and Medical Unit, as well as the courtrooms and attorney and regular visit areas, receive limited attention.
17. Under ordinary circumstances, little to no instruction regarding sanitation is provided to the population at large or to detainees with work assignments. Instruction when given on any subject is most often in English and sometimes Spanish, and far less frequently in any other of detainees’ native languages.
18. In general, tissues are not provided, handkerchiefs are unauthorized articles of clothing, and access to toilet paper and paper towel is limited, leaving detainees with nowhere to sneeze, cough, or wipe their noses other than into their own clothes, sheets, blankets, or towels, none of which is replaced daily. Additionally, detainees’ access to hand soap, toothpaste and toothbrushes, and shampoo is limited, particularly for the indigent who are dependent upon the facility for their replenishment.
19. Also of concern, ICE facilities often rely on detainees to perform most of the cooking and cleaning in the facility, but neither ICE nor the ICE Health Service Corps (IHSC) has no universal health screening protocol to ensure that all the persons preparing and serving meals and cleaning the area are not sick or symptomatic.
20. The IHSC Interim Guidance on COVID-19 does not demonstrate that ICE facilities have actually undertaken measures to ensure adequate sanitation practices.6 It is unlikely that these provisions have been undertaken, and even if they have been, most of the risk factors for spreading the virus discussed above would not be mitigated.
5 CENTERS FOR DISEASE CONTROL & PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, (Mar. 23, 2020) , https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html#Table1. 6 ICE HEALTH SERVICE CORPS, INTERIM REFERENCE SHEET ON 2019-NOVEL CORONAVIRUS (COVID-19) (Mar. 6, 2020).
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21. Under the “Isolation” section of the Guidance, IHSC recommends that ICE facilities “Implement strict hand hygiene and standard, airborne and contact precautions, including use of eye protection.”7 However, there is no provision for providing a budget for more sanitation items, including soap and other cleaners for facilities, or the protective devices detainees in certain assignments should to wear. Nor does this provision apparently apply to other units in the facilities, where detainees or staff may be sick and capable of passing the virus along but asymptomatic. Similarly, that section requires that certain symptomatic detainees be provided a “tight-fitting surgical mask” but it is unclear whether, given shortages of such masks and other personal protective equipment, they are even widely available for detainees, or whether they have already been purchased.8
22. Altogether, these conditions allow respiratory viruses such as COVID-19 to spread quickly once they are introduced into a facility. Detainees are physically near each other and regularly handle objects, foods, and surfaces that others have likewise touched. Once the virus enters the facility, detainees have no way to distance themselves from people who are or may be sick. It would be a violation of facility rules to refuse to bunk in an assigned bed, to be handcuffed to another detainee on a transport, to board a bus, or to consent to a pat down search by a detention officer who had flu-like symptoms. Detained people also come into frequent contact with detention and health care staff in the ordinary course of daily life within the facility. There is no way to prevent regular contact among detainees, or between detainees and detention and medical staff.
23. Because there is no way to ensure that infected individuals do not come into contact with other people living and working in detention facilities, best correctional and correctional health care practice would require, at a minimum, the preemptive release of individuals who are at-risk of serious illness or death if they become infected with COVID-19. As Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, recommended in their recent letter to Congress on the pandemic, “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” Dr. Allen and Dr. Rich concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”9
24. Alternatives to detention, including supervised release, informed by individualized risk assessment, are a highly effective method of managing immigration cases without either unnecessary pretrial detention or risk to public safety or risk of failure to appear for court hearings. Compliance rates with supervised release are extremely high; for example, a recent Government Accountability Office report found that 99 percent of immigrant participants in ICE’s alternative
7 Id. at 5. 8 See Andrew Jacobs et al., “At War With No Ammo”: Doctors Say Shortage of Protective Gear Is Dire, NY Times (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html. 9 See Scott A. Allen, MD, FACP & Josiah Rich, MD, MPH, Letter to House and Senate Committees on Homeland Security (Mar. 19, 2020), https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020Letter-to-Congress.pdf [hereinafter “Allen & Rich”].
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to detention program appeared at scheduled court hearings.10 ICE also operated a very successful Family Case Management Program until recently.11 According to the Inspector General report, overall compliance was 99 percent for ICE check-ins and appointments, and 100 percent for attendance in court hearings. Two percent of participants absconded during the process.12
25. Doctors serving as subject matter experts for the Department of Homeland Security agree that ICE should release at least medically vulnerable people in light of the current COVID-19 pandemic.13
26. However, small and incremental changes in admissions or releases do not fully protect currently detained people from contracting or spreading the virus—and especially those who are at-risk of serious illness or death. Instead, ICE can ensure their safety by making full use of its alternatives to detention program. Alternatives to detention include release on personal recognizance, and release on conditions such as phone call check-ins or, when absolutely necessary, electronic surveillance. These alternatives also include the Intensive Supervision Appearance Program (ISAP), in which staff maintains contact with participants with reminder calls and letters and coaching towards meeting all the upcoming reporting requirements and follows up within 48 hours after each court appearance. Under ISAP, when a participant, or the government, files an appeal in the person’s removal case and while that appeal is pending, monitoring is modified as necessary to include the addition or removal of GPS or Voice-ID technology, and to increase or decrease in-office and home visit frequency. And if reinstated, it could include ICE’s Family Case Management Program, offering orientation and education for participants about their legal rights and responsibilities; individualized family service plans; assistance with transportation logistics; tracking and monitoring of immigration obligations (to include ICE check-ins, attendance at immigration court hearings); and safe repatriation and reintegration planning for participants who are returning to their home countries.14
27. Alternatives to detention are effective because they are tailored to an individual depending on their levels of need and risk in the community. Such tailored alternatives maximize medically vulnerable people’s ability to remain healthy in the community while protecting public safety and the integrity of court proceedings. When there is a threat to our health and well-being, especially one as serious as COVID-19, we count on the government to protect us from undue harm. The government assumes the same responsibility for those in its custody who lack the autonomy to
10 Report to Congressional Committees, Alternative to Detention, Improved Data and Collection and Analysis Needed to Better Assess Program Effectiveness, GOVERNMENT ACCOUNTABILITY OFFICE (2014), https://www.gao.gov/assets/670/666911.pdf. 11 Frank Bajak, Associated, ICE shutters helpful family management program amid budget cuts, June 9, 2017, https://www.csmonitor.com/USA/Foreign-Policy/2017/0609/ICE-shutters-helpful-family-management-programamid-budget-cuts. 12 DHS Office of Inspector General, U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program, Contract (Redacted), November 30, 2017, https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-22-Nov17.pdf. 13 Allen & Rich, supra note 10. 14 Immigration and Customs Enforcement, Fact Sheet: Stakeholder Referrals to the ICE/ERO Family Case Management Program, 2016, https://www.aila.org/infonet/ice-fact-sheet-family-case-management-program.
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care for themselves. Today, “flattening the curve” so that the infection rate for COVID-19 stays below the healthcare system capacity is key both to controlling the pandemic in the United States and to preventing undue harm to those of us in custody. As individuals, our responsibility to ourselves and others is to limit our social interactions and maintain rigorous personal hygiene practices. For government and institutions, “flattening the curve” requires focusing on densely populated places in which its inhabitants cannot isolate themselves. That is why increasingly more governors have closed all but the essential governmental agencies and businesses and are focusing now on jails and prisons, widely recognized by the healthcare community to be “amplifiers of infectious diseases” such as COVID-19. 15 They do so because they recognize the conditions that can keep diseases from spreading—such as social distancing and rigorous sanitation—are nearly impossible to achieve in correctional and immigration detention facilities.
28. At the local level, leaders have been swift to act:
 District attorneys in San Francisco, California16 and Boulder, Colorado17 have taken steps to release people held pretrial, with limited time left on their sentence, and charged with nonviolent offenses.
 Ohio courts in Cuyahoga County18 and Hamilton County19 have begun to issue court orders and conduct special hearings to increase the number of people released from local jails. On a single day, judges released 38 people from the Cuyahoga County Jail, and they hope to release at least 200 more people charged with low-level, non-violent crimes.
 The Los Angeles County Sheriff's Department20 has reduced their jail population by 10% in the past month to mitigate the risk of virus transmission in crowded jails. To reduce the jail population by 1,700 people, the Sheriff reports releasing people with less than 30 days left on their sentences and is considering releasing pregnant people and older adults at high risk.
15 Prison Policy Initiative, Responses to the COVID-19 (Mar. 26, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. 16 Darwin Bond Graham, San Francisco Officials Push to Reduce Jail Population to Prevent Coronavirus Outbreak, THE APPEAL (Mar. 11, 2020) https://theappeal.org/coronavirus-san-francisco-reduce-jail-population/. 17 Elise Schmelzer, Denver, Boulder Law Enforcement Arresting Fewer People to Avoid Introducing Coronavirus to Jails, THE DENVER POST (Mar. 16, 2020), https://www.denverpost.com/2020/03/16/colorado-coronavirus-jailsarrests/. 18 Kevin Freeman, Cuyahoga County Jail Releasing Some Inmates Early to Help Minimize Potential Coronavirus Outbreak, FOX 8 (Mar. 14, 2020), https://fox8.com/news/coronavirus/cuyahoga-county-jail-releasing-some-inmatesearly-to-help-minimize-potential-coronavirus-outbreak/. 19 Kevin Grasha, Order to Authorize Hamilton County Sheriff to Release Low-Risk, Nonviolent Jail Inmates, CINCINNATI ENQUIRER (Mar. 16, 2020), https://www.cincinnati.com/story/news/crime/crime-andcourts/2020/03/16/coronavirus-hamilton-county-sheriff-release-low-risk-inmates/5062700002/. 20 Justin Carissimo, 1,700 Inmates Released from Los Angeles County in Response to Coronavirus Outbreak, CBS NEWS (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angeles-county-coronavirus-response2020-03-24/.
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 In Travis County, Texas,21 judges have begun to release more people from local jails on personal bonds (about 50% more often than usual), focusing on preventing people with health issues who are charged with non-violent offenses from going into the jail system.
 Court orders in Spokane, Washington22 and in three counties in Alabama23 have authorized the release of people being held pretrial and some people serving sentences for “low-level” misdemeanor offenses.
 In Hillsborough County, Florida,24 over 160 people were released following authorization via administrative order for people accused of ordinance violations, misdemeanors, traffic offenses, and third-degree felonies.
 In Arizona, the Coconino County25 court system and jail have released around 50 people who were held in the county jail on non-violent charges.
 In Salt Lake County, Utah,26 the District Attorney reported that the county jail plans to release at least 90 people this week and to conduct another set of releases of up to 100 more people in the next week.
 In New Jersey, Chief Justice Stuart Rabner signed an order calling for the temporary release of 1,000 people from jails (almost a tenth of the entire state’s county jail population) across the state of New Jersey27 who are serving county jail sentences for probation violations, municipal court convictions, “low-level indictable crimes,” and “disorderly persons offenses.
 In New York City,28 Mayor DeBlasio plans to release 300 people who are over 70 or medically at-risk with misdemeanor and non-violent felonies from its jails.
21 Ryan Autullo, Travis County Judges Releasing Inmates to Limit Coronavirus Spread, THE STATESMAN (Mar. 16, 2020), https://www.statesman.com/news/20200316/travis-county-judges-releasing-inmates-to-limit-coronavirusspread?fbclid=IwAR3VKawwn3bwSLSO9jXBxXNRuaWd1DRLsCBFc-ZkPN1INWW8xnzLPvZYNO4. 22 Chad Sokol, Dozens Released from Spokane County Custody Following Municipal Court Emergency Order, THE SPOKESMAN (Mar. 17, 2020), http://www.courts.wa.gov/content/publicupload/eclips/2020%2003%2018%20Dozens%20released%20from%20Spo kane%20County%20custody%20following%20Municipal%20Court%20emergency%20order.pdf. 23 Marty Roney, Coronavirus: County Jail Inmates Ordered Released in Autauga, Elmore, Chilton Counties, MONTGOMERY ADVERTISER (Mar. 18, 2020), https://www.montgomeryadvertiser.com/story/news/crime/2020/03/18/county-jail-inmates-ordered-releasedautauga-elmore-chilton-counties/2871087001/. 24 WFTS Digital Staff, 164 “Low Level, Nonviolent” Offenders Being Released From Hillsborough County Jails, ABC NEWS (Mar. 19, 2020), https://www.abcactionnews.com/news/region-hillsborough/164-low-level-nonviolentoffenders-being-released-from-hillsborough-county-jails. 25 Scott Buffon, Coconino County Jail Releases Nonviolent Inmates in Light of Coronavirus Concerns, ARIZONA DAILY SUN (Mar. 20, 2020), https://azdailysun.com/news/local/coconino-county-jail-releases-nonviolent-inmatesin-light-of-coronavirus/article_a6046904-18ff-532a-9dba-54a58862c50b.html. 26 Jessica Miller, Hundreds of Utah Inmates Will Soon Be Released In Response To Coronavirus, SALT LAKE CITY TRIBUNE (Mar. 20, 2020), https://www.sltrib.com/news/2020/03/21/hundreds-utahinmates/?fbclid=IwAR3r8BcHeEkoAOcyP3pmBu9XWkEj4MMsDC_LUH4YZn2QGd18hALk4vM9X1c. 27 Kathleen Hopkins, Coronavirus in NJ: Up to 1,000 Inmates to Be Released From Jails, ASBURY PARK PRESS (Mar. 23, 2020), https://www.app.com/story/news/2020/03/23/nj-coronavirus-up-1-000-inmates-releasedjails/2897439001/. 28 Bill DeBlasio (@NYCMayor), TWITTER (Mar. 24, 2020, 9:01 PM), https://twitter.com/NYCMayor/status/1242617574950678531?s=20.
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29. At the state level, state correctional systems are also taking steps to reduce the prison population in the face of the pandemic:
 The North Dakota parole board29 granted early release dates to 56 people held in state prison with expected release dates later in March and early April.
 The director of the Iowa Department of Corrections30 reported the planned, expedited release of about 700 incarcerated people who have been determined eligible for release by the Iowa Board of Parole.
 In Illinois,31 the governor signed an executive order that eases the restrictions on early prison releases for “good behavior” by waiving the required 14-day notification to the State Attorney’s office. The executive order explicitly states that this is an effort to reduce the prison population, which is particularly vulnerable to the COVID-19 outbreak.
30. In addition to releasing people from jail and prison, jurisdictions are reducing jail admissions, contributing to the reduction in average daily populations, alleviating overcrowding and reducing density.  In Bexar County, Texas,32 the Sheriff released a COVID-19 mitigation plan that includes
encouraging the use of cite and release and “filing non-violent offenses at large,” rather than locking more people up during this pandemic.  The Baltimore, Maryland State’s Attorney33 will dismiss pending criminal charges against anyone arrested for drug offenses, trespassing, and minor traffic offenses, among other nonviolent offenses.  District attorneys in Brooklyn, New York34 and Philadelphia, Pennsylvania,35 have taken steps to reduce jail admissions by releasing people charged with non-violent offenses and not actively prosecuting low-level, non-violent offenses.
29 Arielle Zionts, DOC, Gov. Noem Not Planning Special Coronavirus Releases From Prisons, RAPID CITY JOURNAL (Mar. 21, 2020), https://rapidcityjournal.com/news/local/crime-and-courts/doc-noem-not-planning-specialcoronavirus-releases-from-prisons/article_d999f510-7c7c-5d19-ab3a-77176002ef99.html. 30 Linh Ta, Iowa’s Prisons Will Accelerate Release of Approved Inmates to Mitigate COVID-19, TIMESREPUBLICAN (Mar. 23, 2020), https://www.timesrepublican.com/news/todays-news/2020/03/iowas-prisons-willaccelerate-release-of-approved-inmates-to-mitigate-covid-19/. 31 Rylee Tan, Illinois Reaches 1,285 COVID-19 Cases, Gov. Pritzker Eases Restrictions on Prison Release, LOYOLA-PHOENIX (Mar. 23, 2020), http://loyolaphoenix.com/2020/03/illinois-reaches-1285-covid-19-cases-govpritzker-eases-restrictions-on-prison-release/. 32 Courtney Friedman, Bexar County Sheriff Announces COVID-19 Prevention Plan For Jail Inmates, Deputies, KSAT.COM (Mar. 14, 2020), https://www.ksat.com/news/local/2020/03/15/bexar-county-sheriff-announces-covid19-prevention-plan-for-jail-inmates-deputies/. 33 Tim Prudente and Phillip Jackson, Baltimore State’s Attorney Mosby to Stop Prosecuting Drug Possession, Prostitution, Other Crimes Amid Coronavirus, BALTIMORE SUN (Mar. 18, 2020), https://www.baltimoresun.com/coronavirus/bs-md-ci-cr-mosby-prisoner-release-20200318u7knneb6o5gqvnqmtpejftavia-story.html. 34 Andrew Denney and Larry Celona, Coronavirus In NY: Brooklyn DA to Stop Prosecuting “Low-Level” Offenses, NEW YORK POST (Mar. 17, 2020), https://nypost.com/2020/03/17/coronavirus-in-ny-brooklyn-da-to-stopprosecuting-low-level-offenses/. 35 Samantha Melamed and Mike Newall, With Courts Closed by Pandemic, Philly Police Stop Low-Level Arrests to Manage Jail Crowding, PHILADELPHIA INQUIRER (Mar. 18, 2020),
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 Police departments in Los Angeles County, California,36 Denver, Colorado,37 and Philadelphia, Pennsylvania38 are reducing arrests by using cite and release practices, delaying arrests, and issuing summons. In Los Angeles County, the number of arrests has decreased from an average of 300 per day to about 60 per day.
 The state of Maine39 vacated all outstanding bench warrants (for over 12,000 people) for unpaid court fines and fees and for failure to appear for hearings in an effort to reduce jail admissions.
 State and federal courts in Connecticut have begun releasing sentenced prison and jail inmates vulnerable to complications from COVID-19 as well.40
 In response to the Oklahoma Department of Corrections’ decision not to admit any new people to state prisons, Tulsa and Oklahoma counties are trying to keep their jail population down by not arresting people for misdemeanor offenses and warrants, and by releasing 130 people this past week through accelerated bond reviews and plea agreements.
 In King County, Washington, Seattle jails are no longer accepting people booked for misdemeanor charges that do not present a public safety concern or people who are arrested for violating terms of community supervision. The Department of Adult and Juvenile Detention is also delaying all misdemeanor “commitment sentences” (court orders requiring someone to report to a jail at a later date to serve their sentence).
31. On March 18, 2020, ICE41,42 notified Congress that it will halt arrests except for those deemed “mission critical” to “maintain public safety and national security.” In the statement, ICE also stated that it would avoid arrests near necessary healthcare services including hospitals, doctors’ offices, and clinics, “except in the most extraordinary of circumstances.” In essence, ICE has acknowledged its prosecutorial discretion and committed to exercise it.
32. This is all that Plaintiffs ask. Individuals with medical vulnerability to COVID-19 face irreparable harm if they continue to be detained and are unlikely to pose significant flight or public safety threats if they were released under conditions consistent with objective assessments of risk.
https://www.inquirer.com/health/coronavirus/philadelphia-police-coronavirus-covid-pandemic-arrests-jailovercrowding-larry-krasner-20200317.html. 36 Salvador Hernandez, Los Angeles Is Releasing Inmates Early And Arresting Fewer People Over Fears Of The Coronavirus In Jails, BUZZFEED NEWS (Mar. 16, 2020), https://www.buzzfeednews.com/article/salvadorhernandez/los-angeles-coronavirus-inmates-early-release. 37 Schmelzer, supra note 17713. 38 Melamed and Newall, supra note 35. 39 Judy Harrison, Maine Courts Vacate Warrants for Unpaid Fines and Fees, BANGOR DAILY NEWS (Mar. 16, 2020), https://bangordailynews.com/2020/03/16/news/state/maine-courts-vacate-warrants-for-unpaid-fines-and-fees. 40 Edmund H. Mahony, Courts Ponder the Release of Low-Risk Inmates in an Effort to Block the Spread tf COVID19 to the Prison System, HARTFORD COURANT (Mar. 24, 2020), https://www.courant.com/coronavirus/hc-newscovid-inmate-releases-20200323-20200324-oreyf4kbdfbe3adv6u6ajsj57u-story.html. 41 Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside U.S., Will Focus on Criminals During Coronavirus Outbreak, WASHINGTON POST (Mar. 18, 2020), https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html 42 Ian Kullgren, ICE to Scale Back Arrests During Coronavirus Pandemic, POLITICO (Mar. 18, 2020), https://www.politico.com/news/2020/03/18/ice-to-scale-back-arrests-during-coronavirus-pandemic-136800.
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Case 1:20-cv-00480-JEJ Document 33-8 Filed 03/27/20 Page 12 of 12 The government should release as many of these vulnerable individuals as possible, as quickly as possible, with only those conditions that are necessary to ensure participation in court proceedings. 33. Given the severity of COVID-19 and the rapidly escalating rate of infection and death in the United States, as well as the increased risks in ICE detention facilities, I recommend that all medically vulnerable individuals at high risk of serious illness or death as a result of COVID-19 be released immediately, on appropriate conditions of supervision where necessary, to protect themselves, other detainees, correctional and medical staff, and the general public, without impeding immigration court proceedings. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 27th day in March 2020, in New York City, NY. ____________________________ Dora Schriro
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 Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 1 of 45

DJF:jms

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

et al.,

: NO. 1:CV-20-0480

Petitioner-Plaintiffs

:

: (Jones, J.)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

RESPONDENTS’ RESPONSE AND OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER AND OR
PRELIMINARY INJUNCTION

Date: March 29, 2020

DAVID J. FREED United States Attorney
s/Joanne M. Sanderson Joanne M. Sanderson Assistant U.S. Attorney PA 315327 228 Walnut Street Harrisburg, PA 17101 Joanne.Sanderson@usdoj.gov Phone: 717-221-4482 Fax: 717-221-4493

Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 2 of 45
TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 FACTUAL BACKGROUND....................................................................................3 LEGAL STANDARD................................................................................................9 ARGUMENT ...........................................................................................................11
I. Petitioners lack Article III standing. ...........................................................11 A. Petitioners lack injury in fact. ..................................................................11 B. Even if Petitioners Alleged an Injury, Such Injury is not Fairly Traceable to Respondents. ........................................................................................17 C. Petitioners’ Alleged Injury – a Heightened Risk for Serious Consequences from COVID-19-is not Redressable by Release. .............19
II. Petitioners May not Challenge the Conditions of their Confinement Through a Habeas Petition Seeking Immediate Release..............................................19
III. Petitioners do not satisfy the requirements for a preliminary injunction. A. Petitioners are Unlikely to Succeed on the Merits. ......................................21
1. Denial of Discretionary Relief to which Petitioners Lack a Legitimate Claim of Entitlement Does not Violate Due Process. ..............................21
2. Petitioners cannot be Substantially Likely to Prevail on the Merits Where an Essential Element of their Constitutional Claim – Deliberate Indifference, Fails.....................................................................................27
3. Petitioners’ claims fail under the Fifth Amendment................................31 B. Petitioners have not Shown Irreparable Harm. ........................................33 C. The Balance of Interests and Public Interest Favor Respondents............36 CONCLUSION ........................................................................................................38
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TABLE OF AUTHORITIES FEDERAL REGULATIONS 8 C.F.R. § 212.5 ..................................................................................................... 22 8 C.F.R. § 1208.2 ................................................................................................... 27
FEDERAL STATUTES 8 U.S.C. § 1182 ...................................................................................................... 22 8 U.S.C. § 1226 ...................................................................................................... 26 18 U.S.C. § 3142 ...................................................................................................... 2 18 U.S.C. § 3143 ...................................................................................................... 2 18 U.S.C. § 3145 ...................................................................................................... 2 28 U.S.C. § 2243 ...................................................................................................... 1 FEDERAL CASES Adams v. Freedom Forge Corp.,
204 F.3d 475 (3d Cir. 2000) ........................................................................ 10, 34 Allen v. Wright,
468 U.S. 737 (1984) .......................................................................................... 17 Anderson v. Davila,
125 F.3d 148 (3d Cir. 1997) ................................................................................ 9 Andrews v. Cervantes,
493 F.3d 1047 (9th Cir. 2007) ........................................................................... 13 Appiah v. United States INS,
202 F.3d 704 (4th Cir. 2000) ....................................................................... 22-23 Austin v. Pa Dep’t of Corr.,
No. 90-7497, 1992 WL 277511 (E.D. Pa. 1992) .............................................. 35 Bell v. Wolfish,
441 U.S. 520 (1979) .......................................................................................... 31 Blackie’s House of Beef, Inc. v. Castillo,
659 F.2d 1211 (D.C. Cir. 1981) ........................................................................ 36 Clapper v. Amnesty Int’l USA,
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Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 4 of 45
568 U.S. 398 (2013) .................................................................................... 15, 17 Daniels v. Williams,
474 U.S. 327 (1986) .......................................................................................... 18 Demore v. Kim,
538 U.S. 510 (2003) .......................................................................................... 32 Frey v. Fulcomer,
132 F.3d 916 (3d Cir.1997) ......................................................................... 23-24 Gonzales v. Gorsuch,
688 F.2d 1263 (9th Cir. 1982) ........................................................................... 19 Guerrero-Sanchez v. Warden York County Prison,
905 F.3d 208 (3d Cir. 2018) .............................................................................. 25 Helling v. McKinney,
509 U.S. 25 (1993) ...................................................................................... 27, 28 Holiday Inns of Am., Inc. v. B & B Corp.,
409 F.2d 614 (3d Cir. 1969) ........................................................................ 10, 34 Hutto v. Finney,
437 U.S. 678 (1978) .......................................................................................... 29 Jennings v. Rodriguez,
583 U.S. ___, 138 S. Ct. 830(2018) ................................................................... 32 Leamer v. Fauver,
288 F.3d 532 (3d Cir. 2002) ........................................................................ 20, 21 Los Angeles v. Lyons,
461 U.S. 95 (1983) .................................................................... 13, 14, 14-15, 15 Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................................................. 11, 12, 13 Matter of Extradition of Toledo Manrique,
No. 19MJ71055MAG1TSH, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) ..... 2 Millhouse v. Samuals,
No. 1:15-CV-1644, 2016 WL 3436432 (M.D. Pa. Apr. 29, 2016) ............. 10-11
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Millhouse v. Samuals, No. 1:15-CV-1644, 2016 WL 3457173 (M.D. Pa. June 20, 2016) ................... 11
Munaf v. Geren, 553 U.S. 674–90 (2008) ...................................................................................... 9
Nken v. Holder, 556 U.S. 418 (2009) .......................................................................................... 36
Boone v. Brown, No. 05-0750, 2005 WL 2006997 (D.N.J. 2005) ............................................... 35
Preiser v. Rodriguez, 411 U.S. 475 (1973) .......................................................................................... 20
Rumsfeld v. Padilla, 542 U.S. 426 (2004) ........................................................................................ 1, 2
Sovereign Water v. Messineo, 572 F. Supp. 983 (E.D. Pa. 1983) ..................................................................... 10
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ................................................................................ 11, 12
Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681 (M.D. Pa. May 11, 2007) ............................. 29
Tedford v. Hepting, 990 F.2d 745 (3d Cir. 1993) .............................................................................. 20
Jolly v. Coughlin 76 F.3d 468 (2d Cir. 1996) .......................................................................... 35, 36
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) .......................................................................................... 22
United States of Am. v. Cox, No. 219CR00271RFBVCF, 2020 WL 1491180 (D. Nev. Mar. 27, 2020) ....... 32
United States of Am. v. Morris, No. CR1710701DWFTNL, 2020 WL 1471683 (D. Minn. Mar. 26, 2020) ...... 32
United States of America v. Johnson, No. 19-CR-20437-01, 2020 WL 1474397 (E.D. Mich. Mar. 26, 2020) ..... 32-33
iv

Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 6 of 45
United States of America v. Munguia, No. 3:19-CR-191-B, 2020 WL 1471741 (N.D. Tex. Mar. 26, 2020) ............... 33
United States of America v. Rollins, No. 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) .................... 32
United States v. Clark, No. 19-40068-01-HLT, 2020 WL 1446895 (D. Kan. Mar. 25, 2020) .............. 33
United States v. Fellela, No. 3:19-cr-079, 2020 U.S. Dist. LEXIS 49198 (D. Conn. Mar. 20, 2020) ....... 3
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .......................................................................................... 36
United States v. Torres, 383 F.3d 92 (3d Cir. 2004) .......................................................................... 23, 24
Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ............................................................................................ 9
Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) .......................................................................................... 19
Walker v. Prisoner Review Bd., 769 F.2d 396 (7th Cir.1985) .............................................................................. 24
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, (2008) ................................................................................... 9, 33, 34
Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................................................... 32
v

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INTRODUCTION Petitioners claim a constitutional violation necessitating their immediate release from custody because they suffer from medical conditions that make them more susceptible to COVID-19 and they are exposed to a “heightened risk” of contracting the virus if they were to remain in detention.1 Petitioners speculate that it is “highly likely” that COVID-19 will reach all three detention facilities that house the Petitioners and their continued detention, under any circumstances, would be unconstitutional because they are particularly vulnerable should they become infected. Doc. 12 (Br. In Support). Notwithstanding the comprehensive steps ICE has taken to prevent that eventuality and the lack of a single confirmed case of COVID-19 at York, Pike or Clinton County, Petitioners ask this Court to find that detention of anyone in immigration detention over fortyfive and/or suffering from any number of medical conditions is per se
1 Pursuant to 28 U.S.C. § 2243, [t]he writ, or order to show cause shall be directed to the person having custody of the person detained. These provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge.... Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). Thus, for purposes of a habeas action, the petitioner’s custodian is the warden of the institution holding the petitioner. (Id. at 442.) In the instant habeas case, the only appropriate respondents are Wardens Craig A. Lowe, Clair Doll, and Angela Hoover. As such, Wardens Craig A. Lowe, Clair Doll, and Angela Hoofer should be substituted as the sole respondents and Simona Flores-Lund, Matthew T. Albence, ICE, and Chad Wolfe should be dismissed from the habeas.
1

Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 8 of 45
unconstitutional. Moreover, to remedy this alleged constitutional violation,
Petitioners ask the Court to order their immediate release from facilities with no
confirmed COVID-19 cases to the general public where Petitioners themselves
acknowledge “COVID-19 is overwhelming local healthcare systems.” Doc. 12 (Br.
In Support) at 9.
The Court should decline to order the extraordinary preliminary relief
Petitioners seek. First, Petitioners do not have a cognizable injury, much less an
irreparable one. Second, habeas relief is inappropriate for Petitioners’ conditions of
confinement claims, which must be brought under the Civil Rights Statute. Finally,
because Petitioners’ constitutional claims lack merit and because the balance of
equities and public interest tilt against granting a temporary restraining order,
Respondents respectfully request the Court deny Petitioners’ motion.2
2 Petitioners request the Court intervene because of the “growing recognition among courts . . . that releasing vulnerable detainees is the only way to protect them.” Doc. 12 (Br. In Support) at 2. In support of this position, Petitioners rely on XochihuaJaimes v. Bar, Order, No. 18-71460 (9th Cir. Mar. 23, 2020). Id. Respondents note that the Ninth Circuit re-issued that decision and revoked the notice of publication. Thus, this case is not published and the Court should assign an appropriate weight of authority. Also, the court did not consider the conditions at the Adelanto detention facility where Petitioner is detained, whether there were any confirmed cases of COVID-19, or whether DHS has implemented any safety precautions to address COVID-19 at Adelanto.
In addition, in Matter of Extradition of Toledo Manrique, No. 19MJ71055MAG1TSH, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020), (Doc 12 (Br. In Support) at 3), the court released a pre-trial detainee not solely due to COVID-19, but because of a treaty obligation to Peru. Toledo, 2020 WL 1307109, at *1. The court also indicated release could only occur “[w]hen the $500,000 in cash bail is
2

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FACTUAL BACKGROUND
York County Prison, and Clinton and Pike County Correctional Facilities are
Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees.
Ex. 1, Declaration of Jennifer Moon at ¶ 2. ICE Health Services Corps (IHSC) Field
Medical Coordinators (FMC) ensure that the provisions of medical care by
contractors to the ICE detainees within the IGSA facilities meets detention
standards, as required by IGSA contract. Id. ¶ 3. The FMCs do not provide hands-
on care or direct care with the IGSAs but monitor the medical are and services
provided by the contract facilities. Id. Medical staff at the contract facilities are
directly responsible for medical care at the facility. Id. IHSC comprises a
multidisciplinary workforce that consists of U.S. Public Health Service
Commissioned Corps (USPHS) officers, federal civil servants, and contract health
professionals. Id. ¶ 4.
posted and his wife surrenders her passports.” Toledo, 2020 WL 1307109, at *1,*2. Thus, his release was not without security or entirely premised on the COVID-19 outbreak.
Moreover, although Fellela’s request for release was premised on his “medical vulnerability” and the COVID-19 outbreak, the court “determined that Fellela is subject to release in accordance with the explicit requirements of 18 U.S.C. § 3143(a)(1)” and held that it “need not further determine whether the COVID-19 virus presents a ‘compelling reason’ for release pursuant to 18 U.S.C. § 3142(i) or an ‘exceptional reason’ for release pursuant to 18 U.S.C. § 3145(c), or the extent to which these statutes apply at all to a defendant who is subject to release pending sentencing under 18 U.S.C. § 3143(a)(1).” United States v. Fellela, No. 3:19-cr079, 2020 U.S. Dist. LEXIS 49198, at *1. (D. Conn. Mar. 20, 2020).
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Since the initial reports of COVID-19, ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff for the screening and management of potential exposure among detainees. Id. ¶ 5. Moreover, ICE has maintained a pandemic workforce protection plan since February 2014, which was last updated in May 2017. Ex. 2, Declaration of Ada I. Rivera ¶ 6. This plan provides specific guidance for biological threats such as COVID-19. Id. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-19. Id. ¶ 6. IHSC has also been 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, including the use of N95 masks, available respirators, and additional personal protective equipment. Id. ¶ 7.
As a precautionary measure, ICE has temporarily suspended social visitation and limited professional visits to non-contact visits in all detention facilities. Ex 1, Moon Decl. ¶ 15. York, Clinton, and Pike County are screening all staff and vendors when they enter the facilities –including body temperature. Id. ¶ 16.
In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care. Id. ¶ 6. York, Clinton, and Pike facilities are screening all detainee intakes when they
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enter the facility including travel history, medical history, and checking body temperatures. Id.¶ 17. Each detainee is also screened for disabilities upon admission. Id. ¶ 7. Identified disabilities are further elevated and reasonable accommodations are provided as medically appropriate. Id. At York, Clinton, and Pike County, during intake medical screenings, routine comprehensive health assessments, or screenings occasioned by detainee complaints, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through areas with sustained community transmission in the past two weeks. Id. ¶ 8. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Id. ¶ 9. Those detainees that present symptoms compatible with COVID-19 are placed in isolation, where they are tested. Id. If testing is positive, they will remain isolated and treated. Id. In case of any clinical deterioration, detainees will be referred to a local hospital. Id.
In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Id. ¶ 10. Cohorting is an infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but
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are asymptomatic. Id. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Id. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Id. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Id. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines. Id. The York, Clinton, and Pike County facilities have identified housing units for the quarantine of patients who are suspected of or test positive for COVID19 infection. Id. ¶ 19.
The York, Clinton, and Pike County facilities provide education on COVID19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. Id. ¶ 18. The York, Clinton, and Pike County Prisons all have populations within their approved capacities and are not overcrowded. Id. ¶ 13.
Each facility – York, Clinton, and Pike – manage both male and female detainees. Id. ¶ 11. Each provides daily access to sick calls in a clinical setting and has onsite medical staff 24 hours a day, seven days a week with the ability to admit patients to the local hospital for medical, specialty, or mental health care. Id. As of
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9:30 a.m. on March 27, 2020, IHSC has zero suspected cases of COVID-19 in York, Clinton, or Pike County and zero confirmed cases of COVID-19 in either York, Clinton, or Pike County. Id. ¶ 13.
The York, Clinton, and Pike County prisons have increased sanitation frequency and provide sanitation supplies as follows: York County Prison provides soap, hard surface disinfectant, and gloves and hand sanitizer (for staff) in all housing units. Id. ¶ 14. Masks are provided on an as requested basis. Id. Staff cleans high traffic areas repeatedly throughout the day. Id. The administration is encouraging both staff and the general population to use these tools often and liberally. Id. Clinton County Correctional Facility provides soap, hand sanitizer, and hard surface disinfectants in every housing unit at the facility. Id. All housing units are cleaned every two to three hours. Id. The administration is encouraging both staff and the general population to use these tools often and liberally. Id. Pike County Correctional Facility provides soap, hand sanitizer, hard surface disinfectant, and masks in every housing unit at the prison. Id. Continuous cleaning is performed throughout the day. Id. The administration is encouraging both staff and the general population to use these tools often and liberally.3 Id.
3 The Brief of Amici Curiae Public Health and Human Rights (Doc. 29-3), in arguing that “IHSC’s Recommendations to Combat COVID-19 are inadequate”, relies on March 6, 2020 interim guidelines. Doc. 29-3 (Amici Curiae) at 13. It outlines that these guidelines are inadequate because they focus on questions regarding travel rather than testing, hygiene and sanitation tools. Id. Because the COVID-19
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Petitioners are thirteen immigration detainees housed in the Middle District of Pennsylvania at either York, Pike, or Clinton County who have various preexisting medical conditions that require medical treatment. Doc. 1 (Pet.) ¶¶ 3, et seq. Petitioners allege that their many pre-existing conditions render them at increased risk for serious illness or death if they contract COVID-19. Petitioners note that they receive treatment for all of their pre-existing conditions while residing at their respective detention facilities. Doc. 1 (Pet.) ¶¶54, et seq. Petitioners do not allege any particularized deficiency in their medical. Id.

outbreak is a fluid situation, so is ICE’s handling of preparation and prevention. As

stated, the three ICE facilities at issue have a screening procedure that does include

questions regarding contact and travel; however, it also involves temperature checks

for detainees as well as staff and vendors, suspension of visitation, increased hygiene

practices, and readily accessible sanitation supplies for staff and detainees. See Ex.

1, Moon Decl. It is inaccurate to state that there exists “no guidance or special

protections for high-risk patients when they enter detention; and provide no

guidelines for identifying high-risk patients who are already in detention.” There are

protocols for isolating and monitoring detainees if someone tests positive. New or

transfer detainees are medically screened prior to entering the facility. This is

outlined in the Moon affidavit.

Additionally, every medial organization has stated that hand washing with

soap and water is the main preventative measure that should be employed with hand

sanitizer recommended when soap and water is unavailable. Here, all three facilities

offer copious amounts of soap and water and are recommending/educating about

frequently doing it.

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

ncov/prepare/prevention.html. Also, there is no reliable evidence that facility staff

have not been educated. And, if there is a positive test, nothing cited would establish

that the protocols in place at the facilities are inadequate.

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LEGAL STANDARD Preliminary injunctions are an extraordinary remedy and are never awarded as of right. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, (2008); Munaf v. Geren, 553 U.S. 674, 689–90 (2008). Their purpose is to preserve the status quo and relative positions of the parties until the case is decided on the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997). In order to obtain the injunctive relief he seeks, the moving party must demonstrate A(1) that he is likely to suffer irreparable injury in the absence of injunctive relief; [and] (2) that he is likely to prevail on the merits.@ Anderson, 125 F.3d at 159 (citing Schulz v. U.A. Boxing Ass=n, 105 F.3d 127, 131 n.6 (3d Cir. 1997)); Tenafly Eruv Ass=n, Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002) (same). If he succeeds in demonstrating the first two requirements, the court should then consider, when relevant, A(3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.@ Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (quoting Del. River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (additional citation omitted)). The Third Circuit has Arepeatedly insisted that the use of judicial power to arrange relationships prior to a full determination on the merits is a weighty matter,
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and the preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm.@ Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (citing Campbell Soup Co. v. ConAgra Inc., 977 F.2d 86, 91 (3d Cir. 1992)). AThe dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat.@ Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969) (additional citations omitted). The Supreme Court has instructed that Athe tool of the preliminary injunction should be reserved for >extraordinary situations.=@ Id. (citing Sampson v. Murray, 415 U.S. 61, 88 (1974)). The Third Circuit has also Ainsisted that the risk of irreparable harm must not be speculative.@ Adams v. Freedom Forge Corp., 204 F.3d at 488 (citing Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994)). AGenerally preliminary injunctions are granted to maintain the status quo.@ Sovereign Water v. Messineo, 572 F. Supp. 983 (E.D. Pa. 1983) (citation omitted). Further, where the movant’s “request for immediate relief in his motion for preliminary injunction necessarily seeks resolution of one of the ultimate issues presented... [the movant] cannot demonstrate that [s]he will suffer irreparable harm if he is not granted a preliminary injunction, because the ultimate issue presented will be decided either by this Court, upon consideration of [Respondent’s Response to the Petition, or at an evidentiary hearing].” Millhouse v. Samuals, No. 1:15-CV-1644, 2016 WL 3436432, at *4
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(M.D. Pa. Apr. 29, 2016), report and recommendation adopted sub nom. Millhouse v. Samuals, No. 1:15-CV-1644, 2016 WL 3457173 (M.D. Pa. June 20, 2016) (internal citations omitted).
ARGUMENT I. Petitioners lack Article III standing.
“Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). 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 “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. 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’ claims fail on all three elements.
A. Petitioners lack injury in fact. Petitioners allege that, “Defendants’ ongoing detention of Petitioners violates
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the Due Process Clause” under the Fifth Amendment because “Defendants are subjecting [Petitioners] to a heightened risk of contracting COVID-19”. Doc. 1, Pet. ¶ 136. Petitioners allege that because of their varied pre-existing medical conditions, they bear an elevated risk of serious, adverse outcomes if they contract COVID-19. Id. However, Petitioners’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.
To establish injury in fact, a plaintiff must show that he or she suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560. Injury in fact is a “constitutional requirement” and is the “[f ]irst and foremost” of standing’s three elements. Id. at 1547-48 (quoting Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998)). 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
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that the alleged injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending,’” Lujan, 504 U.S. at 568; see Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (“The common definition of ‘imminent,’ however, does not refer only to events that are already taking place, but to those events ready to take place or hanging threateningly over one’s head.”).
Petitioners’ alleged harm—that their detention increases their risk of COVID19—is entirely speculative. Petitioners have not alleged that COVID-19 has affirmatively spread to the Pike, York, or Clinton county facilities. Even assuming the “crowded conditions” Petitioners allege, crowding in and of itself does not cause COVID-19 infection if none in the group has contracted COVID-19. Petitioners’ claims of future injury are hypothetical, and Petitioners’ are not entitled to immediate release from detention based on a conjectural injury that they have not suffered. An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged [] -- a ‘likelihood of substantial and immediate irreparable injury.’” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Moreover, even if COVID-19 were introduced to any of the ICE facilities housing Petitioners, Petitioners allegations that Respondents are unprepared to respond to that contingency are unsupported. Indeed, Petitioners Petition and Motion demonstrate that Respondents have provided Petitioners with fully-funded
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medical care and medication for a number of different conditions, and have transported Petitioners to outside hospitals when circumstances require. Doc. 1, Pet. ¶¶ 55-96 (“Mr. Thakker has significant health issues. . . . He takes 11 medications a day. . . . Since being detained Mr. Thakker twice has been sent from the prison to the community hospital.”); Id. ¶¶ 57-58.) (“Mr. Stubbs takes 12 pills a day for his various medical ailments. . . . he had a kidney transplant in 2014 . . . [and] Type II diabetes and heart stents.”); Id. ¶ 61 (“Ms. Lin has chronic hepatitis B.”); Id. ¶ 65 (“Mr. Augustin suffers from diabetes, high blood pressure, chronic anemia, [and] nerve issues. . . . He has had a number of medical emergencies while at York County Prison and as a result has had to be hospitalized many times.”); Id. ¶ 68 (“Mr. JuarezJuarez suffers from diabetes.”); Id. ¶ 71 (“Mr. Idowu suffers from Type II diabetes, high blood pressure, and high cholesterol. . . . He receives medication for these conditions, including insulin and metformin.”); Id. ¶ 74 (“Mr. Gomez-Lopez has had the flu four times.”); Id. ¶ 78 (“Mr. Gomez-Hernandez has multiple chronic health issues. He is diabetic and currently receiving treatment for an ulcer.”) Id. ¶ 81 (“Mr. Pratt suffers from Type II diabetes and high blood pressure. He receives medication for these conditions.”) Id. ¶ 84 (“Mr. Oyediran has severe asthma . . . and a history of high blood pressure and high cholesterol.”) Id. ¶ 87 (“Mr. Mansyur has diabetes, thyroid issues, and high blood pressure. He receives medication for these medical issues.”) Id. ¶ 90 (“Mr. Prajoga has diabetes, cholesterol, high blood pressure, and
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hepatitis. He takes medication for these conditions.”) Id. ¶ 93 (“Mr. Hillocks has several serious health problems. Seven months ago, he was diagnosed with leukemia. . . . He also has diabetes, high blood pressure, high cholesterol, and anemia. He takes insulin for his diabetes and also takes medication for his high blood pressure and cholesterol.”) Id. ¶ 96.
Any allegation that Respondents would inadequately attend to Petitioners’ medical needs in the future, at no cost to Petitioners, is contradicted by the remainder of their Petition and by their supporting declarations. Notably, Andrew LorenzenStrait, who “oversaw [ICE’s] health and welfare programs and services in immigration detention, including innovative programs to serve vulnerable populations” does not claim that the preventative measures, including health-related “segregation,” are inadequate to prevent the spread of COVID-19. See Decl. of Lorenzen-Strait Doc. 12, Ex. 17 at ¶¶ 2, et seq. Therefore, the “speculative nature” of Petitioners’ “claim of future injury requires a finding that th[e ‘likelihood of substantial and immediate irreparable injury’] prerequisite of equitable relief has not been fulfilled.” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (finding standing based on fear, even one that is reasonable, “improperly waters down the fundamental requirements of Article III.”).
Petitioners introduced a letter attaching numerous “factual updates” in the
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form of declarations from several of the petitioners. Doc. 33 (Letter). These declarations contain no factual basis for any of the information contained therein and are nothing more than speculative conjecture. Specifically, Mr. Thakker states that on March 26 a correctional officer told him another correctional office had tested positive for COVID-19 and that three other officers were out sick. See (Doc. 33-2) Ex. 21.4 Further, Mr. Idowu states a person on his block was sick and his symptoms “seemed similar to COVID-19”, that medical showed up in “masks and gloves” but also that “staff are not wearing any gloves or masks”. See (Doc. 33-3) Ex. 22. Ms. Lin states that she had her temperature taken, someone in the facility was “wearing a mask and protective gear”, she “heard” two people were quarantined, and she was scared. See (Doc. 33-4) Ex. 23. Mr. Oyediran indicates he was moved from his block two times “because people were sick” and “had to be quarantined” but that he “is unaware of detainees or correctional officers being tested.” See (Doc. 33-5) Ex. 24.5 Finally, Mr. Stubbs indicates a person on his block “looks sick” and was blowing his nose, that he had his temperature was checked, and that he was scared. See Doc. 33-6) Ex. 25. Mr. Thakker and Mr. Stubbs both allege “block A is on
4 Mr. Thakker makes no allegations that the correctional officer who allegedly tested positive was in the facility, had any contact with him or any of the other petitioners, or, that even if that person did test positive it affected him in any way. 5 It should be noted that Mr. Oyediran has only been in the facility since March 3, 2020. It is not uncommon for newly placed detainees to be moved several times upon entry.
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quarantine”. See id.; see also (Doc. 33-2) Ex. 21.6 Each of these observations comes from people, who are understandably scared, but untrained in medical testing and diagnostics. These are speculative observations based on what they have heard or feel. None of the assertions are backed by actual testing or confirmed medical information. Despite what each of these Petitioners feels about what is going on in the facility, ICE confirmed on March 27, 2020 that there are zero suspected cases and zero confirmed cases of COVID-19 inside York, Clinton, or Pike County facilities. See Ex. 1, Moon Decl. ¶ 12.
B. Even if Petitioners Alleged an Injury, Such Injury is not Fairly Traceable to Respondents.
To meet the standing requirements of Article III, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). Petitioners allege that their mere detention at the facility makes the risk of COVID-19 traceable to Respondents. However, assuming that Petitioners are at a heightened risk for death or serious illness because of their pre-existing conditions and that this heightened risk constitutes injury, this injury is not fairly traceable to Respondents’ detention of Petitioners.
6 The allegations of a “quarantine” on the women’s block were made by two men with no access to this block. As of March 29, 2020, “block A” was not under any special instruction due to COVID-19 or otherwise.
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As Petitioners’ acknowledge, COVID-19 is affecting large swaths of the globe. Neither Respondents, nor any other person or entity, can entirely ameliorate the risk of contracting COVID-19. There is no allegation, nor could there be, that Respondents are responsible for the outbreak of COVID-19. There is also no allegation that Respondents are constitutionally liable whenever a person within their custody contracts a communicable disease. See Daniels v. Williams, 474 U.S. 327, 332 (1986) (“Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.”). Petitioners seem to allege that their detention, without more, makes the possibility of contracting COVID-19 traceable to Respondents. Petitioners are mistaken.
Petitioners are not entitled to—and the government cannot guarantee— absolute safety from COVID-19. Petitioners’ heightened risk of death or serious illness stems from the nature of COVID-19 and their pre-existing conditions, not from Respondents’ actions or detention. Where, as here, ICE has taken measures to prevent the spread of COVID-19 in all of its facilities, Petitioners’ fear of COVID19, based on their pre-existing conditions and the virulence of COVID-19, is insufficient to show that this speculative future harm is fairly traceable to the conduct of Respondents.
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C. Petitioners’ Alleged Injury – a Heightened Risk for Serious Consequences from COVID-19-is not Redressable by Release.
Petitioners alleged injury—that they are subject to a heightened risk of death or serious illness if they contract COVID-19—will not be redressed by ordering their release. “Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.). For purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). Petitioners’ desired relief— release from detention—will not ameliorate or diminish their claimed heightened risk of injury or death resulting from COVID-19, nor can a court order requiring release prevent Petitioners from contracting COVID-19.
IHSC provides medical care at no cost to detainees at York, Pike, and Clinton County, including Petitioners. By reason of their detention, Petitioners have greater access to robust medical care than the general public. Ordering their release would leave Petitioners without their present access to health care would arguably put Petitioners at greater risk of serious complications in the event that they contract COVID-19. II. Petitioners May not Challenge the Conditions of their Confinement
Through a Habeas Petition Seeking Immediate Release.
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Petitioners’ petition for habeas relief seeking immediate release is inappropriate in the context of a conditions of confinement claim. Section 2241 provides an avenue of relief for inmates who allege violations of the Constitution or federal law which make the place, the conditions, or the duration of confinement illegal. If a prisoner “is attacking something other than the fact or length of his confinement, [] he is seeking something other than immediate or more speedy releaseB-the traditional purpose of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 494 (1973); see also Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993). Federal habeas corpus review is available only Awhere the deprivation of rights is such that it necessarily impacts the fact or length of detention.@ Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). Thus, if a claim does not directly implicate the fact or duration of an inmate=s confinement, it may not be pursued by means of a habeas corpus petition. Leamer, 288 F.3d at 542.
Although both [42 U.S.C.] § 1983 and habeas corpus allow prisoners to challenge unconstitutional conduct by state officers, the two are not coextensive either in purpose or effect. Habeas relief is clearly quite limited: >The underlying purpose of proceedings under the >Great Writ= of habeas corpus has traditionally been to >inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail, and that only if his detention were found to be unlawful.=@ Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002) (quoting Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv.L.Rev. 1551, 1553 (2001)). A plaintiff seeking to impose liability due to the deprivation
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of any rights, privileges, or immunities secured by the Constitution and laws, the appropriate remedy is a civil rights action. Leamer, 288 F.3d at 540. Thus, because Petitioners do not assert any illegality or impermissible duration of confinement, Petitioners’ petition for habeas relief seeking immediate release is inappropriate in the context of their conditions of confinement claim.
III. Petitioners do not satisfy the requirements for a preliminary injunction. A. Petitioners are Unlikely to Succeed on the Merits.
Petitioners’ constitutional claims are unlikely to succeed on the merits. Though Petitioners fashion their complaints as a challenge to their “conditions of confinement,” Petitioners do not allege any concrete deficiency in the manner in which they are confined. Rather, Petitioners allege that any confinement of an individual more susceptible to COVID-19 due to age or medical affliction violates the Constitution. Petitioners in effect invite the Court to recognize a due process right to immediate, discretionary release. Petitioners have no such due process right.
1. Denial of Discretionary Relief to which Petitioners Lack a Legitimate Claim of Entitlement Does not Violate Due Process.
Petitioners’ prayer for relief makes clear that this litigation has nothing to do with the conditions of Petitioners’ confinement. Doc. 1 (Pet.) at 48. It does not request a single improvement to their conditions of confinement. Id. As Petitioners acknowledge, they essentially seek—and claim a due process interest in—an
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exercise of “discretion to release.” Doc. 1 (Pet.) at 23. Therefore, the question is whether Petitioners have a due process right to a discretionary grant of parole for “urgent humanitarian reasons or significant public benefit” under 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b), 235.3. Petitioners do not.
To claim a due process interest, Petitioners much first allege a legitimate claim of entitlement to a liberty or property interest. Where the benefit sought is discretionary, there can be no due process claim to it. At issue in this case is Petitioners’ claim of a liberty interest in a discretionary grant of humanitarian parole. Eight U.S.C. § 1182(d)(5)(A) provides that the Attorney General7 may “in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission…” 8 U.S.C. § 1182(d)(5)(A). The Supreme Court has made clear that “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005); see also Appiah v. United States INS, 202 F.3d 704, 709 (4th Cir. 2000) (“Because suspension of deportation is discretionary,
7 On March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist as an independent agency within the Department of Justice, and its functions were transferred to the newly formed Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). The INS was divided into three separate agencies, ICE, Customs and Border Protection (CBP), and Citizenship and Immigration Services (USCIS).
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it does not create a protectable liberty or property interest.”), cert. denied, 531 U.S. 857 (2000).
The Third Circuit has already determined that parole under § 1182(d)(5)(A) is discretionary, in holding that “[s]ection 1182 is entirely a ‘piece of legislative grace, ... convey[ing] no rights[and] no status.’ It was not the kind of statute that ‘create[d] a vested liberty or property interest.’” United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004) (citing Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002) (internal citations omitted.) The Ninth Circuit similarly concluded “there is no statutorily created protected interest in parole.” Kwai Fun Wong v. United States INS, 373 F.3d 952, 968 (9th Cir. 2004). (“The INA does not create any liberty interest in temporary parole that is protected by the Fifth Amendment. Rather, the statute makes clear that whether and for how long temporary parole is granted are matters entirely within the discretion of the [Secretary of Homeland Security].”)
In Greenholtz, the Supreme Court squarely held that there is no constitutional right to parole. 442 U.S. at 7. The Court specifically held that the possibility of early release “provide[d] no more than a mere hope that the benefit will be obtained ...., a hope which is not protected by due process.” Id. at 11(internal citations omitted). Where, however, a state creates a parole system that statutorily mandates release unless specified conditions are met, a prisoner eligible for parole consideration may be entitled to certain due process protections. See id. at 12; Frey v. Fulcomer, 132
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F.3d 916, 925 n. 7 (3d Cir.1997); Walker v. Prisoner Review Bd., 769 F.2d 396, 400 (7th Cir.1985). As the Third Circuit stated in Frey,
the Greenholtz line of decisions stands for the proposition that statecreated liberty interests will be found when the state (1) establishes substantive predicates to guide official decision making, and (2) uses explicit mandatory language in its regulations directing the decisionmaker to reach a particular outcome if the substantive predicates are present. Frey, 132 F.3d at 925 n. 7.
Section 1182 uses no “explicit mandatory language” that could create in an alien any protectable expectation of entitlement to relief. The Court instead found relief under section [1182] falls squarely within what the Court in Greenholtz described as a ‘mere hope’ category of relief.” Torres, 383 F.3d 92, 105.
Petitioners rely on the February 2020 Allen & Rich letter to support their contention that “release is the only viable option” (Doc. 12 (Br. In Support) at 23) where these doctors recommended: “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” Id. However, that recommendation goes on to say “detainees who do not pose an immediate risk to public safety.” Doc. 12 (Br. In Support) Ex. 9 at 5 (emphasis in original).8 Notwithstanding the fact that Petitioners have no entitlement to discretionary release, most of the Petitioners have been considered for
8 Also of note, the March 15, 2020 Allen and Rich letter advocates for proactive screening, testing, isolating, limiting transportation and transfers of detainees –all of which ICE has implemented as of March 27, 2020. See Ex. 1, Moon Decl.
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Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 31 of 45
discretionary release in due course as allowed under their individual detention status
and currently controlling case law. Petitioners were denied or released accordingly.
Specifically,
a. Bharatkumar Thakker has a Petition for Review pending with the Third Circuit to challenge his removal order. See Thakker v. Att’y Gen., No. 19-2780 (3d Cir. 2019). He also has a stay of removal. On February 18, 2020, this Court granted his habeas petition and ordered ICE to conduct a bond hearing due to the length of Thakker’s detention; however, he had already received an individualized bond hearing pursuant to Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018) two weeks prior to that order. At that time the immigration judge determined Thakker was “still a significant risk” and denied bond. See Ex. 3, Thakker Bond Denial.
b. Adebodun Adebomi Idowu has a Petition for Review pending with the Third Circuit to challenge the denial of his requested relief from removal. See Idowu v. Att’y Gen., No. 19-3710 (3d Cir. 2019). He also has a temporary stay of removal. On December 12, 2019 and continuing into December 19, 2019, Idowu had a bond hearing pursuant to Guerrero-Sanchez, supra. The immigration judge determined that Idowu was a danger to the community and denied bond. See Ex. 4, Idowu Bond denial.
c. Courtney Stubbs has a final order or removal and all that stands between him and removal to Jamaica is the issuance of his travel document. He also had a bond hearing pursuant to Guerrero-Sanchez, and was denied bond on January 13, 2020. See Ex. 5, Stubbs Bond Denial.
d. Lin Meiling is an arriving alien and is currently detained under the detention statute that governs arriving aliens – 8 U.S.C. § 1225(b). She has a removal order and a pending appeal of that order. Of note, during her immigration proceedings, the immigration judge inquired as to her health to attempt to account for her non-responsive nature; however, she offered nothing but that she was anemic. See Ex. 6, IJ Decision. Further, despite the fact that Ms. Lin has the option to file for or renew
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Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 32 of 45
a parole request from ERO and has not done so, ICE is currently reviewing Ms. Lin for potential release.
e. Jean H.C. Augustin had his appeal challenging his removal order dismissed by the Board of Immigration Appeals on March 17, 2020. Thus, he is subject to the 90-day removal period set forth in 8 U.S.C. § 1231(a)(1).9 Augustin has the option to file for or renew a parole request to ERO and has not done so.
f. Rodolfo Juarez-Juarez is currently held in discretionary detention pursuant to 8 U.S.C. § 1226(a) as a pre-final removal order detainee. He was previously released on $5,000 bond but had his bond revoked after committing additional crimes. He has another motion for bond currently pending before the immigration court. See Ex. 7, Motion for Bond & Bond Order.
g. Domingo Gomez-Lopez has a Petition for Review pending with the Third Circuit to challenge the denial of his requested relief from removal. See Gomez-Lopez v. Att’y Gen., No. 19-3454 (3d Cir. 2019). He also has a temporary stay of removal. On February 20, 2020, he was denied bond as a danger to the community. See Ex. 8, GomezLopez Bond Denial.
h. Rigoberto Gomez-Hernandez is currently held in discretionary detention pursuant to 8 U.S.C. § 1226(a) as a pre-final removal order detainee. He was considered for bond but denied as a danger to the community.10
i. Henry Pratt is currently detained pursuant to 8 U.S.C.§ 1231(a)(6) as an alien with a final order of removal. Pratt will not cooperate in obtaining a travel document for his removal to Jamaica. In addition, he was previously denied bond and has another bond application pending but his attorney has requested several continuances. See Ex. 9, Pratt Bond Denial and Declaration.
9 This information was obtained through the automated ICE case hotline. 10 This information was obtained from ICE’s counsel review of EARM; however, the order was inaccessible and not able to be provided at this time.
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j. Mayowa Abayomi Oyediran is currently detained under the provisions of 8 CFR 1208.2(c) due to his participation in the Visa Waiver Program. He has the option to file for or renew a parole request to ERO and has not done so.
k. Fnu Mansyur was detained pursuant to 8 U.S.C. § 1231(a)(6) as an alien with a final order of removal; however, the BIA issued a stay of that removal on March 18, 2020, based on Mansyur’s pending Motion to Reopen his proceedings. As of March 27, 2020, he had been released from Pike County Correctional Facility. See Doc. 33 at 1.
l. Agus Prajoga was detained under 8 U.S.C. § 1231(a) as an alien with a final order of removal; however, he has a Petition for Review pending with the Third Circuit and a temporary stay of removal. As of March 27, 2020, he had been released from Pike County Correctional Facility. Id.
m. Dexter Anthony Hillocks was granted bond but has failed to post that bond. See Ex. 10, Hillocks Bond Order. However, should he post the bond previously issued, he will be released.
Thus, two of the Petitioners have already attained release, two have avenues
for release that do not involve a TRO order from this Court, one is currently being
reviewed for release, and eight have been reviewed in the regular course of their
immigration proceedings and their release was determined not to be warranted.
2. Petitioners cannot be Substantially Likely to Prevail on the Merits Where an Essential Element of their Constitutional Claim – Deliberate Indifference, Fails.
The Supreme Court held in Helling v. McKinney, 509 U.S. 25 (1993), that
Eighth Amendment claims have a subjective and an objective component. Id. at 35.
The objective component requires “more than a scientific and statistical inquiry into
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the seriousness of the potential harm and the likelihood that such injury to health will actually be caused” by the allegedly unconstitutional conduct. Id. at 36. “It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. Regarding the subjective element, the Court held that while “accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, ‘deliberate indifference to serious medical needs of prisoners’ violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” Id. at 32 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
Petitioners, relying on Helling, contend that their allegation of potential medical complications should they be exposed to COVID-19 satisfies the objective element of their Eighth Amendment claim. Doc. 12 (Br. In Support) at 32. However, Helling is clearly distinguishable. Without deciding the merits of the case, the Court held that a prisoner whose cellmate had a five-pack-a-day cigarette habit had standing to bring an Eighth Amendment claim challenging an existing “condition of confinement that is sure or very likely to cause serious illness and needless suffering.” Thus, standing was premised on the prisoner’s actual exposure to smoke, not the facility’s location in an area with a high incidence of heavy smokers and the
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speculative likelihood that one of those smokers would one day share a cell with the petitioner, adversely impacting his health. Petitioners would have this Court find the latter cognizable. The other cases cited by Petitioners are distinguishable for the same reason. Each addressed the petitioner’s exposure to existing conditions that created a risk of future harm. See, e.g., Hutto v. Finney, 437 U.S. 678 (1978) (mingling of inmates with inmates with infectious diseases with others); Stewart v. Kelchner, No. 06-2463,2007 WL 9718681 (M.D. Pa. May 11, 2007), report and recommendation adopted, 2007 WL 9718672 (M.D. Pa. June 1, 2007) (same). At base, Petitioners do not allege—nor could they—that they have been unequivocally exposed to COVID-19 in York, Pike, or Clinton County.
More importantly, Petitioners argument that the Government has acted with deliberate indifference fails. Contrary to Petitioners’ assertions (Doc. 1 (Pet.) ¶¶ 45, 49, 52, 103, 104; Doc. 12 (Mot. In Support) at 11, 13, 14, 28, 29), ICE has screening, monitoring, restrictions, assessments, and protocols in place to deal with COVID-19 from a prevention, detection, and treatment standpoint. Ex. 1, Moon Decl. ¶¶ 8-19. Specifically, social visitation has been suspended, contact professional visits have been suspended; vendors, staff and new detainees are physically screened for respiratory symptoms and elevated body temperature; sanitation supplies and protective supplies have been made available; and education of staff and detainees has been provided. Id. Finally, each facility at issue has a fully staffed medical
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department with 24/7 access for detainees and each with the ability to refer detainees to outside hospital facilities and no suspected or confirmed cases in any facility. Id. ¶¶ 11, 12. The lack of any confirmed COVID-19 cases inside any of the facilities underscores the effectiveness and care the Government has taken to protect vulnerable detainees.
Moreover, the cases Petitioners rely on in their Notice of Supplemental Authority (Doc. 27) are distinguishable. First, in Basank v. Thomas, Case No. 202518, 2020 L 1481503 (S.D.N.Y. Mar. 26, 2020), the three facilities at issue – Bergen, Essex, and Hudson –had each reported confirmed cases of COVID-19. Basank, at *2. The counties themselves encompassed “one-third of the confirmed cases of COVID-19 in New Jersey.” Id. Those circumstances are markedly different than here where there has not been one suspected or confirmed case of COVID-19 inside York, Pike, or Clinton County facilities. See Ex. 1, Moon Decl. at 12. Similarly, in Coronel v. Thomas, Case No. 20-2472 (S.D.N.Y. Mar. 27, 2020), the court stated the record was clear that ICE had taken “no specific action to prevent the spread of COVID-19”. Coronel, at 10. The record showed that there were no hygiene protocols to follow, no testing of those coming into the jail, or those with fevers. Id. at 10-11. Again, that is not the situation at York, Clinton, and Pike County where increased hygiene and safety protocols are in place, screening of vendors and staff occurs daily, visitation has been suspended, and sanitation supplies have been
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provided to staff and detainees. See Ex. 1, Moon Decl. ¶¶ 14-18. Finally, in Calderon Jimenez v. Wolf, Case No. 20-101224 (D. Mass Mar. 26, 2020), the judge relied on a number of factors unrelated to COVID-19 to order release. Specifically, it was a previously pending habeas action where removal had been stayed. ICE has requested numerous extensions of the briefing schedule and “switched” positions as to why the alien was detained in the first place, and failed to understand its own regulations regarding the reasons to initially detain –all of which contributed to six and one-half months of detention. Calderon Jiminez, at 5-6. The court found release warranted because “except for ICE asking for and receiving extensions of time to respond or file a sur-reply ... there would have been a hearing and a decision on this case earlier.” Id. at 6.
3. Petitioners’ claims fail under the Fifth Amendment. The constitutionally of pre-trial detention conditions under the Fifth Amendment requires an evaluation of whether those conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). A condition constitutes punishment if a plaintiff can show that through express intent, or restriction, or condition that it is not “reasonably related to a legitimate governmental objective.” Bell, 441 U.S. at 539. Petitioners do not present allegations or evidence to show Respondents have an “express intent” to punish Petitioners. Doc. 1 (Pet.); Doc. 12 (Br. In Support),
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generally. Additionally, preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective. See Jennings v. Rodriguez, 583 U.S. ___, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). Moreover, Petitioners’ current confinement is not excessive in relation to that objective. Petitioners do not – because they can not - cite to authority under which the fact of detention itself becomes an “excessive” condition solely due to the risk of a communicable disease outbreak. Even if Petitioners had shown a Fifth Amendment violation, there exists “no authority under which such a violation would justify immediate release, as opposed to injunctive relief that would leave Plaintiffs detained while ameliorating any alleged violative conditions within the facility.” Dawson v. Asher, No. 20-cv-00409 (W.D. Wa. Mar. 19, 2020) (denying TRO requesting release of detainees due to COVID-19); see also United States of America v. Rollins, No. 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) (denying release of pre-trial detainee because “as serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions [requiring detention]”); United States of Am. v. Cox, No. 219CR00271RFBVCF, 2020 WL 1491180 (D. Nev. Mar. 27, 2020) (same); United States of Am. v. Morris, No. CR1710701DWFTNL, 2020 WL 1471683, at *3 (D. Minn. Mar. 26, 2020) (same); United States of America v. Johnson, No. 19-CR-20437-01, 2020 WL 1474397, at
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*4 (E.D. Mich. Mar. 26, 2020)(same); United States of America v. Munguia, No. 3:19-CR-191-B (03), 2020 WL 1471741, at *4 (N.D. Tex. Mar. 26, 2020) (“the Court cannot release every detainee at risk of contracting COVID-19 because the Court would then be obligated to release every detainee”); United States of America v. Martin, Criminal Case NO. PWG-19-140-13 (D. Md. Mar. 17, 2020) (denying pre-trial release to protect from exposure to COVID-19 where defendant suffered from asthma, high blood pressure, and diabetes because correctional and medical staff were implementing precautionary and monitoring practices sufficient to protect detainees from exposure to the COVID-19 virus); United States v. Clark, No. 1940068-01-HLT, 2020 WL 1446895, at *1 (D. Kan. Mar. 25, 2020) (denying motion for release of pre-trial detainee who alleged detention is a “lethal threat…because he is a diabetic and does not have an opportunity for social distancing.” The court was “sympathetic to his concerns, but Mr. Clark is not alone. COVID-19 presents serious ongoing concerns for millions of people, especially those with certain underlying medical conditions” but denying release “based solely on generalized COVID-19 fears and speculation.”)
B. Petitioners have not Shown 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, 555 U.S. at 22 (emphasis in original). “Issuing
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a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. Here, “[t]he dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat.” Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir.1969) (emphasis added).Further, the risk of irreparable harm must not be speculative. See, e.g., Adams v. Freedom Forge Corp., 204 F.3d 475, 487–88 (3d Cir. 2000; Acierno v. New Castle Cty., 40 F.3d 645 (3d Cir.1994).
As stated above, Petitioners allege that only release from immigration detention into the general population, will spare them the heightened risk of adverse consequences from COVID-19 due to their pre-existing conditions. This is not only speculative, but it is unlikely. Petitioners suggest there is a “real possibility” they will be infected if not released from detention but do not explain how they will suffer irreparable harm in the absence of an order requiring their release, given that Petitioners’ existing medical care would be interrupted if not ended as a consequence of their release. If Petitioners continue to receive adequate medical care and shelter from COVID-19 in immigration detention, their harm is non-existent much less irreparable.
The cases Petitioners rely on to bolster their claims of irreparable harm are
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distinguishable. For instance, Petitioners rely on Boone v. Brown, No. 05-0750, 2005 WL 2006997 (D.N.J. 2005), for the proposition that refusal to test for a highly contagious infectious disease is sufficient to demonstrate irreparable harm. Doc. 12 (Br. In Support) at 46. The plaintiff in Boone had been subjected to several standard tests for tuberculosis. Each time, he developed a more severe allergic reaction. He repeatedly requested prison medical staff administer an alternative TB test to reduce the risk of the documented allergic reaction he experienced, but was not afforded an alternative test and was disciplined for failing to allow the performance of the standardized TB test. The court granted a preliminary injunction requiring alternative TB testing pending the outcome of Boone’s lawsuit. Boone, 2005 WL 2006997, at *14. In Boone, unlike here, the harm plaintiff suffered as a result of the standardized TB test actually existed and was not a “real possibility.”
In addition, the issue in Austin v. Pa Dep’t of Corr., No. 90-7497, 1992 WL 277511 (E.D. Pa. 1992) centered on an inadequate screening, monitoring, and assessment procedure for TB inmates entering and in the PA Department of Corrections – a procedure which had been in place for at least five years. The court found that irreparable harm existed if the inadequate program was not updated to ensure the testing and tracking of live cases was adequate and accurate. Similarly, the Second Circuit in Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) found that “correctional officers have an affirmative obligation to protect prisoners from
35

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infectious disease” where there existed deficient TB control and treatment. In this instance, ICE has protocols in place and has had them in place since the inception of the pandemic. See Ex. 2, Rivera Decl.; Ex. 1, Moon Decl. Unlike the inadequate and outdated procedures for TB at issue in Austin and Jolly, ICE’s procedures for COVID-19 are identical to those recommended by the CDC and designated experts on infectious disease and detention facilities. Id. Thus, Petitioners have failed to establish the likelihood of irreparable harm where procedures exist to adequately test, control, and treat detainees in all three facilities where not one positive case has even been confirmed.
C. The Balance of Interests and Public Interest Favor Respondents 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 v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)).
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Petitioners ask the Court to order Respondents to declare unconstitutional the detention of “all people over ages forty-five and older and persons of any age with underlying medical conditions[.]” Doc. 1 (Pet.) at 48.11 Given the vast expanse and indiscriminate nature of Petitioners’ requested order, the balance of interests clearly favors Respondents. The disruptive effect of such an order would long survive the COVID-19 pandemic, and would serve to release many criminal aliens slated for removal back into the general public. This type of burden and attendant harm, and its potential impact on ICE operations nationwide, is too great to be permissible.
Because Petitioners’ cannot show that the balance of hardships and public interest tips in their favor, the Court should deny Petitioners’ request for preliminary relief.
11 Considering that ICE detains many individuals that fall into this sweeping category and provides for their medical care, the Court should consider carefully what effect such a thoughtless release order would impose on the public at a time when states are struggling to provide healthcare resources to address the COVID-19 pandemic.
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CONCLUSION

Because Petitioners lack standing, have improperly brought their conditions

of confinement claims in a habeas petition and cannot satisfy the requirements for

preliminary relief, Respondents respectfully request the Court deny Petitioners’

Motion for a Temporary Restraining Order and Petition for Writ of Habeas Corpus.

Respectfully submitted,

DAVID J. FREED United States Attorney

Dated: March 29, 2020

s/Joanne M. Sanderson Joanne M. Sanderson Assistant U.S. Attorney PA 315327 228 Walnut Street Harrisburg, PA 17101 Joanne.Sanderson@usdoj.gov Phone: 717-221-4482 Fax: 717-221-4493

38

Case 1:20-cv-00480-JEJ Document 35 Filed 03/29/20 Page 45 of 45

DJF:jms UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

et al.,

: NO. 1:CV-20-0480

Petitioner-Plaintiffs

:

: (Jones, J.)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania and is a person of such age and discretion as to be competent to serve papers.
That on March 29, 2020, she served a copy of the attached

RESPONDENTS’ RESPONSE AND OPPOSITION

TO PETITION FOR WRIT OF HABEAS CORPUS AND

MOTION FOR TEMPORARY RESTRAINING ORDER AND OR

PRELIMINARY INJUNCTION

by electronic service pursuant to Local Rule 5.7 and Standing Order 04-6, ¶12.2 to

the following individual(s):

Addressees:

Witold J. Walczak

Carla G Graff

Erika Nyborg-Burch

vwalczak@aclupa.org carla.graff@dechert.com

enyborg-burch@aclupa.org

Muneeba S Talukder Thomas James Miller

Vanessa L. Stine

mtalukder@aclupa.org thomas.miller@dechert.com vstine@aclupa.org

Will W. Sachse

John Grogan

will.sachse@dechert.com jgrogan@langergrogan.com

s/Joanne M. Sanderson Joanne M. Sanderson Assistant United States Attorney

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 1 of 50

DJF:jms

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

et al.,

: NO. 1:CV-20-0480

Petitioner-Plaintiffs

:

: (Jones, J.)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

EXHIBITS IN SUPPORT OF RESPONDENTS’ RESPONSE AND OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS AND
MOTION FOR TEMPORARY RESTRAINING ORDER AND OR PRELIMINARY INJUNCTION

Date: March 30, 2020

DAVID J. FREED United States Attorney
s/Joanne M. Sanderson Joanne M. Sanderson Assistant U.S. Attorney PA 315327 228 Walnut Street Harrisburg, PA 17101 Joanne.Sanderson@usdoj.gov Phone: 717-221-4482 Fax: 717-221-4493

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 2 of 50
INDEX Declaration of Jennifer Moon ............................................................................. Ex. 1 Declaration of Ada I. Rivera ............................................................................... Ex. 2 Thakker Bond Denial .......................................................................................... Ex. 3 Idowu Bond Denial ............................................................................................. Ex. 4 Stubbs Bond Denial ............................................................................................ Ex. 5 Lin IJ Decision .................................................................................................... Ex. 6 Juarez-Juarez Motion for Bond & Bond Order .................................................. Ex. 7 Gomez-Lopez Bond Denial ................................................................................ Ex. 8 Pratt Bond Denial and Declaration ..................................................................... Ex. 9 Hillocks Bond Order ......................................................................................... Ex. 10

Case 1:20-cv-00480-JEJ

Document 35-1

Filed 03/29/20 Page 3 of 50

RESPONDENT EXHIBIT

1

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

Et al.,

: No. 1:20-cv-480

Petitioners-Plaintiffs, :

: (Judge Jones)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

DECLARATION OF JENNIFER MOON

I, Captain Jennifer Moon, MPH, MSN, FNP-BC, hereby declare under

penalty of perjury that the following statements are true and correct to the best of

my knowledge, information, and belief:

1. I am employed by U.S. Department of Homeland Security,

Immigration and Customs Enforcement (ICE), and currently serve as the Deputy

Assistant Director for Healthcare Compliance with ICE Health Service Corps

(IHSC). I have held this position since November 1, 2018.

2. In my current position, I provide oversight of the Medical Case

Management Unit to which the Field Medical Coordinators (FMCs) report. The

FMCs serve as medical consultants to the ICE field offices and oversee clinical

services at Inter-Governmental Service Agreement (IGSA) facilities that house

ICE detainees, including the York County Prison, the Clinton County Correctional

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 4 of 50
Facility (Clinton County Prison), and the Pike County Correctional Facility (Pike County Prison).
3. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
4. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
5. Since the onset of Coronavirus Disease 2019 (COVID-19) reports, ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
6. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
7. Each detainee is screened for disabilities upon admission. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 5 of 50
8. At the York, Clinton, and Pike County Prisons, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
9. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. These detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
10. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 6 of 50
medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines.
11. The York, Clinton, and Pike County Prisons each has the following medical capabilities:
a. The York County Prison, which manages both males and females, provides daily access to sick calls in a clinical setting and has onsite medical staff 24 hours a day, 7 days a week with the ability to admit patients to the local hospital for medical, specialty, or mental health care.
b. The Clinton County Prison, which manages both males and females, provides daily access to sick calls in a clinical setting and has onsite medical staff 24 hours a day, 7 days a week- with the ability to admit patients to the local hospital for medical, specialty, or mental health care.
c. The Pike County Prison, which manages both males and females, provides daily access to sick calls in a clinical setting and has onsite medical staff 24 hours a day, 7 days a week with an onsite

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 7 of 50
medical infirmary and the ability to admit patients to the local hospital for medical, specialty, or mental health care. 12. As of 9:30 a.m. on March 27, 2020, IHSC has the following information. a. There are zero suspected cases of COVID-19 at the York, Clinton, and Pike County Prisons. b. There are zero confirmed cases of COVID in the York, Clinton, and Pike County Prisons. 13. The York, Clinton, and Pike County Prisons all have populations within their approved capacities and are not overcrowded. 14. The York, Clinton, and Pike County Prisons have increased sanitation frequently and provide sanitation supplies as follows: a. York County Prison- provides soap, hard surface disinfectant, and gloves in every housing unit at the prison. Masks are provided on an as requested basis. Staff cleans high traffic areas repeatedly throughout the day. The administration is encouraging both staff and the general population to use these tools often and liberally. b. Clinton County Prison- provides soap, hand sanitizer, hard surface disinfectant in every housing unit at the prison. All housing units are cleaned every two to three hours. The administration is

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 8 of 50
encouraging both staff and the general population to use these tools often and liberally. c. Pike County Prison- provides soap, hand sanitizer, hard surface disinfectant, and masks in every housing unit at the prison. Continuous cleaning is performed throughout the day. The administration is encouraging both staff and the general population to use these tools often and liberally. 15. The York, Clinton, and Pike County Prisons have limited professional visits to noncontact visits and suspended in person social visitation and facility tours. 16. The York, Clinton, and Pike County Prisons are screening all staff and vendors when they entered the facilities including body temperatures. 17. The York, Clinton, and Pike County Prisons are screening all detainee intakes when they enter the facilities including travel histories, medical histories, and checking body temperatures and have procedures in place to continue monitoring the populations’ health. 18. The York, Clinton, and Pike County Prisons provide education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 9 of 50
requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
19. The York, Clinton, and Pike County Prisons have identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be address as set forth in paragraphs 8 and 9 supra.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE.
Executed this 27th day of March 2020. _________________________________ Captain Jennifer Moon, MPH, MSN, FNP-BC Deputy Assistant Director for Healthcare Compliance ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security

CCaassee21::2200--ccvv--0000440890--JJLERJ-MDAoTcuDmoecnutm35e-n1t 3F1ileFdile0d3/0239/1280/2P0 agPeag1e0 1ofo5f04
RESPONDENT EXHIBIT
2
IINITED STATES DISTRICT COIIRT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

KARLENA DAWSON, et al., Petitioners-Plaintiffs,
v.
NATHALIE ASHER, et al.,
Respondents-Defendants.

Case No. C20-0409-JLR-MAT

DECLARATION OI'DR ADA RTVERA
I, Dr. Ada Rivera make the following statements under oath and subject to the penalty of
pe{ury:

1. I am currently the Deputy Assistant Director for Clinical Services/Medical Director of the ICE Health Service Corps (IHSC) of Enforcement and Removal Operations, U.S. lmmigration and Customs Enforcement (ICE). I have held this position since July 2017.

2. In my current position, I oversee and monitor all clinical services at IHSC-staffed
facilities that house ICE detainees, including the Northwest ICE Processing Center O{IPC) in Tacoma, Washington.

a J.

IHSC provides direct medical, dental, and mentai health patient care to approximately

13,500 detainees housed at 20IHSC-staffed facilities throughout the nation.

4. IHSC comprises a multidisciplina.y workforce that consists of U.S. Public Healttr Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.

5. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been hacking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to IHSC staff for the screening and management of potential exposure among detainees.

6. Moreover, 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 COVID-l9. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-l9.

CCaassee21::2200--ccvv--0000440890--JJLERJ-MDAoTcuDmoecnutm35e-n1t 3F1ileFdile0d3/0239/1280/2P0 agPeag1e1 2ofo5f04
7. Also, IHSC has been 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, including the use of N95 masks, available respirators, and additional personal protective equipment.
8. As a precautionary measure, ICE has temporarily suspended social visitation in all
detention facilities.
9. In testing for COVID-l9, IHSC is also following guidance issued by the Centers for
Disease Control to safeguard those in its custody and care.
10. IHSC has issued recommendations to the field units at detention centers, which it updates and shares on a real-time basis.
11. In summary, during intake medical screenings, comprehensive health assessments or based on detainee complaints, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community hansmission in the past two weeks.
12. The detainee's responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees that present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be
referred to a local hospital.
13. In cases of known exposure to a person with confirmed COVID-I9, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposlre to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Those that show onset of fever and/or respiratory illness are referred to a medicai provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new
cases.
14. In the case of exposure to a person with fever or symptoms being evaluated or under investigation for COVID-19 but not confirmed, the process is the same except that cohorting is discontinued if the index patient receives an alternate diagnosis excluding COVID-19.
15. Field units have also been instructed to educate detainees to include the importance of
hand washing and hand hygiene, covering coughs with the elbow instead of with hands,
and requesting sick call if they feel ill.
16. Currently, IHSC has the following information for the NIPC:
o There are currently 3 detainees under isolation for fever andlor sSrmptoms plus
having epidemiologic risk. Their dates of isolation are as follow:
Page 2 of 4

CCaassee21::2200--ccvv--0000440890--JJLERJ-MDAoTcuDmoecnutm35e-n1t 3F1ileFdile0d3/0239/1280/2P0 agPeag1e2 3ofo5f04
o 0311612A20 (Not tested for COVID-l9 - The statement on this
detainee's medical record reveals that he has not traveled from a couatry with sustained community spread in the past and has not had contact with a known case in the past 2 weeks, which means that he does not meet the CDC criteria for testing at this time. The detainee is isolated in a single cell and is being monitored closely for clinical worsening of any signs/symptoms consistent with COVID-I9)
o 0311612020 (Tested for COVI}-l9 on 0311712020, results are pending) o 0311312020 (Tested for COVID-I9 on 031rc12}20; results negative for
covrD-1e)
. There are currently 2 detainees under monitoring for epidemiologic risk
without fever or symptoms. Monitoring started on:
o 0310612020 o 0310312020 . There were 2 additional asymptomatic/afebrile detainees under monitoring
that were previously released from monitoring after completion of the 14- day monitoring period. Monitoring started:
o 0310212A20 o 0lBAl2020 o There have been 2 dorms cohorted at the facility. These dorms are related to
the detainees with symptoms who have been tested.
o Housing Unit B2 74 detainees started 0311312020 o Housing Unit F4 72 detaitees started 0311612020
17. As of today, IHSC has not received any positive COVID-19 results from the NIPC or any of the rest of the IHSC staffed ICE facilities
---REST OF PAGE LEFT BLANK INTENTIONALLY--.
Page 3 of4

CCaassee21::2200--ccvv--0000440890--JJLERJ-MDAoTcuDmoecnutm35e-n1t 3F1ileFdile0d3/0239/1280/2P0 agPeag1e3 4ofo5f04 I declare, under penalty of pe{ury under 28 U.S.C. $ 1746, that the foregoing is true and
correct to the best of my knowledge, information and belief. DATED: March 18,2020
A DA I R IVE RA 3:[,JH;'J,:|J]"1"1',1'$I}
Dr. Ada Rivera
Deputy Assistant Director for clinical Services/IVledical Director
ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
Page 4 of 4

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 14 of 50 RESPONDENT
EXHIBIT
3

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 15 of 50

.o 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20
UNITED STATES DE·PARTME,NT OF JUSTICE EXECUTIVE OFFICE FOR.IMMIGRATION REVIEW
IMMIGRATION COURT YORK, PA

Page 16 of 50
RESPONDENT EXHIBIT
4

FILE: A204-892-773

tN THE MATTER OF:

IDOWU, ADEBQDl,JN

\=<-E.SPONDENT IN REMOVAL PROCEEDINGS

fl\.""'G ""~\::. D
ORDER OF THE IMMIGRATION JUDGE 0ITH RESPECT TO CUSTODY

, Request having been· made for a change in the custody.· status of·

responde~~ pursuantlto 8 CFR 236.l(c), and full conside~ation
having b$en given to the representations of the Department of

Homeland Security arid the r~spondent, it is hereby

L

ORDERED that'the request for a change,in custody status .be

V'

'

denied.

ORDERED that:the request be granted and that respondent be:

released frbrh custody or:i his own recognizance

{)&\('\(!:\ s; released from custody under bond of $

. .

,:~ ·.

!f{_ OTHER

l'0 <,) . 4 ;'\~/'cf\ \

. . ; f I ~ ~It\-\ .. ~,, ~~ '-.j

:::::~$:::e::::rity, Copy of fhis decisi~n has been served on the respondent and the

YORK ~- CLINTO\ COUNTY. PRISON Date, Dec 19, ~19

✓_4//v/ f;,;,r~ / ~

GOLPARVAR, KUYOMARS Q. Immigration Judge

,
XS

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 17 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 18 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 19 of 50

Adebodun rnowti

(

204-8"92-773

Page 3 ofS

In making its as�essment, the :court shall consider the following factors: seriousness of the crimes

committed, if ru;iy; prior cri�nai history; sentences imposed and time served; nonappeararice at

.

court : proceedings; rehabilitative effort

probation'. history; : length of residence in the or recidivisin. See f!.datter ofDrysdale, 20 I&N

community; and evidence of Dec. 815, 817 (BIA 1994); see

.

also Matter ofMelo,'.21 490 (BIA 1987)� .

I&N

Dec.

883,

886

(BIA

1997);

Matter

ofAndrade,

19

l&N

Dec.:

488,

.

.

IV. LEG.Alj AN�YSIS�AND FINDINGS

First -�cl foremost, tJie Court notes tQ.at both Respondent and DHS waived their appeal pghts
concerning Re�pondent's bond determination. At _the December 19, 2019 bond hearing,
Resp6ndent reserved :his right to :appeal. Then, on December 31, 2019, Respondent filed a Notice
of Waiver of Right to Appe� Denial of Bond. In this waiver, it states that Respondent hereby provi�es notice to th� Court that he wishes to waive his right to appeal his bond deteITI?-ination and wishes to return to Nigeria a� soon as possible. Thus, the Court finds that Respondent, through
�ounsel, knowingly ; and vo)untarily waived his right to an appeal of this Court's bond determiriation. In the altemafrve, however, the Court will address the merits of Respondent's.bond redetermination· denial.

Next,· the Court find� that iti has jurisdiction over Respondent's bond proceedings :pursu�t to

. Guerr_er_o, despite DHS's initial argument that the Court did not have jurisdiction since Respondent

haq not-been th� subject of a:final order of removal for six months or more. Howeve�, the Court

fin�s ��t since R�spondent i8: in Withholding Only proceedings, he was subject to a fi�al order or

�emov� before; he was plac�d in proceedings. The fact that the BIA just recently dismissed

Resp0n�ent's appeal'.in November 20i9 is not dispositive of whether the· Court has jurisdiction

under Guerrero, as it does inlregular removal proceedings. The Court does not have a document

4ldicati�g exact)y wI?.at _day OHS issu�d the administrative removal order for Respondent under

1NA ·.§ 238, but Respondent has been detained for over 13 months. Thus, the �ourt ·finds

Respondent has been. the subjec(of a f:inal removal order for more than six months, �d thus has

jurisdiction �

und�r
i

Guerrero. :

$ee:Guerrero,

.

.

905

F.3d

at

211.

The OHS argue� that1 Respondent's co�viction for money laundering renders him a chmger to the comn).uruty, spe¢ifica)ly a danger to property. Additionally, USCIS found that Respondent did not
enter:.his marri�ge 4i good !faith. Both of these incidents, together, speak to Respondent's
dishonesty, as �ey �oth involve fraud and deceit. Further, DHS argues that Respo· ndent is a significant flight risk;since his appeal to the BIA was dismissed in Novem�er 2019.

Respondent asserts that he is neither a danger to the community nor a flight risk. He first highlights that his criminai con"Viction was one for conspiracy and did not involve violence, and ,that did not have any direct conta¢t with the victims in the scheme, but was rather working behind the sc¢nes. Respondent coqperated with; la':" enforcement and provided valuable information about 9ther members of the�scherpe that l�w·enfor�ement is currently usirig to build a bigger case against the �ngl�aders. See;�on4 Ex. 4, Tab) H.

3

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 20 of 50

Adebodun IDOWU

(

C_

204-892-773

Page 4 ofS

Respondent next highlights that :he is .not a flight risk because he has family ties in the United States, stable employment, and has resided in the United States for over seven years. �is wife and family friend were present at .Respondent's bond hearing, and if he were released from detention �e would return:to hi� family home in �ewark, NJ. Respondent also has several medic� proble_ ms, limiting his ability to:flee and evade law enforcement. Although Respondent's appeal to thtfBIA was dismissed, he has.appealed his case to the Third Circuit Court of Appeals. He contend� that the�e.:significan� equitjes ounrei� his ;iegative factors.
In making a de�ision� the Court �onsiders the totality of the evidence. The Court recognizes that· R.esp�ndent has{many positiv¢ factors that mitigate flight risk issues, including that h� has a-µSC wife and stepchild, stable employment, and has lived· in the United States for over S,even years. The Gourt will note �ts only concern �at Respondent. is a flight risk stems from the fact that he does µot appear· to h�ve a clear avenue to relief from removal. Respondent only real avenues for relief, withholdi_ng of removaj, was denied by the Immigration Judge, and that denial.was upheld by the BIA. The Co� reCOgt¥Ze� that Respondent has an appeal pending at the Third:Circuit, but he has many hurdles to overcom� in order to obtain relief.

However, the Court need not reach the issue of flight risk, as the Court finds that DHS has met
their burden in sho�ng Respondent is a danger to the community. Respondent pleaded guilty to
money laundering in io11. See Bond E.x. 2, Tab B. Of leading concern to the Court is the fact that
Respondent's cpminal contact µivolved a high level of fraud and deception. The: victims of
Respondent's s�hem� �ere a�tual in�viduals who suffered significant harm when their money
was taken from them�· While tµis '.offense is not violent,. it is still considered dangerous� The �ature and recency of R�sp�ndent's critjiinal arrest leads the Court to.determine �at he poses: a danger to
the cqmmunity,�despite his mitig�ting factors of family ties and employment. After reviewing and
asses�ing all th1se fa�tors, th� Court must find that Respondent is a danger to the community.

Therefore, based on the total�ty of the; evidence of record, the Court finds that DHS. has met its

burden in demop.stratlng that Re$pondent is a danger to the community. As such, the '.Court'finds

that �espondent.is pr9perly detained 81\d declines to set bond in his case. Matter ofFaiahi, 26:I&N

De�. 791 (BIA �016); Matter�of'(Jrenci., 25 I&N Dec. 140 (BIJ\ 2009); see also Matter ofGuerra,

24 I&N Dec. 37. As the Courtifin�s Respondent to be a danger, the Court need not addiess wliether

Resp�mdent is a(flight ri�k. S� Drysda_le, 20 I&N Dec� at 817-18 (finding that only when an:�lien

demonstrates th;at he does n9t pose a; danger to the community should an Immigration Judge

detertnine the eitent of flight risk the alien poses); see also Matter ofSiniauskas, 27 I&N Dec� 207

(BIA 2018). ; ;

]

Accor. dingly,

th�
:

following

order
�

will

be

entered:

ORDER:

, IT IS HtREBY ORDERED THAT Respondent�s request for cu�tody

.

'. redeteqnination js DENIED.

L,�<t-d-�dO .

DATE

·

� ftiyomars "Q" Go� lparvar :·. U.S. Immigration Judge

4

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 21 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 22 of 5R0ESPONDENT

UNITED STATES DEPARTMENT OF JUSTICE

EXHIBIT

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

5

YORK IMMIGRATION COURT

Respondent Name: STUBBS, COURTNEY

Alien Registration Number: 042257832 Riders:

Address: C/O PIKE ICE LORDS VALLEY, PA 18428 Attorney Name:
Attorney Address:
,

In Custody Redetermination Proceedings Date: 01/13/2020

ORDER OF THE IMMIGRATION JUDGE
The respondent requested a custody redetermination pursuant to 8 C.F.R. § 1236. After full consideration of the evidence presented, the respondent's request for a change in custody status is hereby ordered:

Denied, because: The Third Circuit Court of Appeals dismissed the respondent's petition on jurisdictional grounds 12/20/2019. The Third Circuit Court of Appeals denied respondent's request for a stay of removal in the same order. The respondent is subject to an administratively final order of removal. As removal appears imminent, the respondent is not entitled to a hearing under Guerrero-Sanchez. His request for bond to be set pursuant to Guerrero-Sanchez is denied.

Granted. It is ordered that Respondent be:

released from custody on his own recognizance.

released from custody under bond of $ .

other:

Other:

Appeal: Appeal Due:

Department of Homeland Security: Respondent: 02/12/2020

waived waived

reserved reserved

Alien Number: 042-257-832 Page 1 of 2

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 23 of 50
Immigration Judge: Weil, Jack 01/13/2020 Certificate of Service This document was served: Via: [ M ] Mail | [ P ] Personal Service | [ E ] Electronic Service To: [] Alien | [M] Alien c/o custodial officer | [] Alien's atty/rep. | [E] DHS By: Weil, Jack , Court Staff Date: 01/13/2020
Alien Number: 042-257-832 Page 2 of 2

0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 24 oRfE5SEPX0OHNIBDITENT 6

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA

File: A201-744-570 In the Matter of

October 10, 2019 .

MEILING LIN RESPONDENT

)

)

IN REMOVAL PROCEEDINGS

)

)

CHARGES: APPLICATIONS: ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: JOHN STAPLES

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ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is an adult native and citizen of China. The respondent admitted factual allegations 1 through 4 as contained in the Notice to Appear, and concedes that she is removable as charged under Section 212(a)(7)(1 )(i) of the Act. Based on the respondent's admissions and concession, I find that the factual allegations contained in the Notice to Appear have been established, and I conclude as a matter of law that the removal charge is sustained. The respondent is removable as charged. The Court directed China as the country of removal. The respondent is seeking relief in the forms of asylum, withholding, and protection under the Convention Against Torture.

0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 25 of 50

The record consists of the respondent's testimony and she was the sole witness in addition to Exhibits 1 through 3. All documentary evidence was admitted without objection, and has been considered by the Court, irrespective of whether it is specifically mentioned or not The Court has familiarized itself with the record of proceeding in its entirety. As a housekeeping matter, the Court notes that the respondent asked for more time at the commencement of her hearing today. She said she was not feeling well and her family member was looking for an attorney for her. OHS voiced its opposition to the request and the Court denied it, based on not finding good cause. The respondent has been in detention for six months. She had a credible fear interview in May wherein she said she had an attorney. She also said she had an attorney that helped her with her asylum application, and either he was not that great or
J
he did not want to come. Later, the respondent said her family member had already hired an attorney for her case, contradicting her earlier statement that the family was only looking for an attorney. The Court did not find the respondent's request to be made in good faith, given that she has had ample time to hire an attorney, has actually already· hired one, and has had the help of her family to get her into the U.S. with the aid of a smuggler. She was on notice of today's merits hearing for almost two months and given a call-up deadline of September 17.
The Court asked about the respondent's health, and she said she was not on any type of medications, but she is anemic. The Court assured her that it was normal to feel nervous, however, if the respondent felt unwell, the Court would stop to give her a break. She simply needed to let me know. The respondent otherwise appeared normal and was able to converse and testify in full health without any apparent difficulty. She was also given a bottle of water and the courtroom officer assured the Court that the temperature of the courtroom was fine. The respondent was

A201-744-570

2

October 10, 2019

0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 26 of 50

again told that she could take a break if she needed one, and even after parts of her testimony the Court did inquire again about her health. The respondent did not display any worrisome aspect of health that would give the Court pause in continuing with her hearing. After the respondent realized that the Court was going to continue with her hearing, and after having benefitted from the aid of the Mandarin interpreter for about 15 minutes, the respondent asked for a new interpreter. She said she understood the Court's interpreter's normal conversation, but being from the Fujian province, she preferred someone with her same dialect. The Court inquired into the issues of fluency between the parties. The respondent said that she had understood the interpreter, Mr. Huynh, so far, and Mr. Interpreter had understood her so far. She was advised that if there were any areas of interpretation she was not fluent in, she should stop and apprise the Court so she could receive clarification and where the interpreter could rephrase the question to the respondent. The respondent then asked for an opportunity to call her family, saying that she needed to get documents. She spoke confusingly about whether or not documents were, in fact, already requested or received. The Court was not in receipt of documents, but told the respondent that it would discuss with her during her testimony what documents she had requested or believed she would have received. Based on all of this, the Court concludes and apprised the respondent of the opinion that the respondent did not want to proceed with her hearing today and was seeking unnecessary delay.
ADDENDUM Both parties will be provided a copy of what has been styled the addendum of law, asylum, withholding, and CAT. This document has also been placed in the record of proceeding and is hereby incorporated by reference throughout this decision for all intents and purposes.

A201-744-570

3

October 10, 2019

0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 27 of 50

ANALYSIS I. Credibility
The first issue to address is credibility. The Court will not make an adverse credibility finding, but there are several key inconsistencies in the respondent's testimony and Asylum Office interview that are troubling. Additionally, the respondent, as stated above, seemed unduly nervous. She was highly non-responsive, even after being asked to listen to the question and provide in direct and specific answers, and even after being asked the same question multiple times. Towards the end of her testimony she was ove11y dramatic and seemed to be embellishing details of her story. As to the inconsistencies, the respondent testified that after she was detained by the local police, she was beaten up by one of the prisoners. She said the prisoner was asldng the respondent to massage her, but the respondent did not do it. She said the prisoner kicked her and hit her, and then some other people came over. There were about three persons and this went on for a few minutes. In her asylum office interview, the respondent said that it was two drug dealers that wanted her to massage them. The respondent could not answer with any certainty if there were two or three assailants. She testified to injuries in the form of bruises all over her body, but she told the Asylum Officer that she was "beaten half to death." These are two different versions of the same event. This is important, because this is the significant harm the respondent faced. Additionally, the respondent was unable to answer clearly questions like how did you celebrate Christmas? She seemed to struggle to figure out what to say. On crossexamination by the Assistant Chief Counsel for OHS, the respondent answered in this exchange as follows. Are you any specific denomination of Christian? Answer: We just call it Christian. What is your favorite part of the Bible? Answer: Because of the limited language, I only read the part about how to pray and Jesus' background.

A201-744-570

4

October 10, 2019

0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 28 of 50

Question: Can you name any part of the Bible to me? Answer: I do not understand completely, I just do worshipping, praying. This is similar to answers she gave the Asylum Officer who interviewed her. She was asked: What is your religion, if any? Answer: My religious belief is Jesus. Question: I understand you were giving me a religious figure. What is the religion associated to Jesus? Answer: It is underground church, church in the village. Question: Ma'am, do you lmow the name of your religion that you are stating is your religion? Answer: Are you asking about their names? Question: Ma'am, I am asking about the name of your religions that you are associated to. Answer: My religious belief. We believe in Jesus. It is called Love Church. She said things that didn't make sense. When asked why she didn't bring important documents with her when she knew she was leaving China to board a plane and fly to Mexico and be smuggled into the U.S., she said she dared not bring it with her because she was afraid she would lose it.
Finally, it seemed that she was embellishing her story at the end when it became apparent to her that her case was coming to a close. She started providing more information, without being asked, about how the police leader "pretty much hates the respondent and everything about her.:· She added the detail that she threatened to sue him in cow1. She painted a much more draconian image of him, not just as a police leader who had slapped her, but in connection to her answer as to why she could not relocate, that this was a person she was still afraid of, and her sister had said this person "is a very powerful and bad person, and he can do many things." In other words, she was bolstering her claim when it was convenient for her to do so. One other unusual area of evidence provided by the respondent's testimony, is that she and her husband were physically living separately from one another since August of 2018 until just a few days before she left for Mexico. She said that he and his female cousin had

A201-744-570

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tricked and lured the respondent into a trap, depriving her of significant savings money. He moved out and took up with his cousin, and the respondent believes they were in a relationship. When asked if she and her husband ever repaired their relationship, the respondent said no, "it's still no good." She was planning her exit from China from as early as January 2019, during this time of physical separation. Also, the respondent and her son had tried to come into the U.S. on a tourist visa in 2015 when "their living condition was good." This is admittedly not her first attempt to come into the U.S., and what it appears to be is that the reason the respondent has to come into this country is something other than simply fearing persecution for her religious beliefs. On this record, I simply cannot find the respondent credible. However, for the purposes of mal<ing a complete and thorough evaluation of this case, I assume that the documents the respondent claimed she would have obtained were a part of the record and are credible. These documents include a warrant for her arrest since she has been missing from China and not reported to the local police station authority monthly as she claims to have required to have done, a medical record in the form of a hospital visit sometime
around December 23 or 24, a receipt of the bail money paid by the respondent's sister
to secure her release, the respondent's household registration, and marriage certificate. Assuming the respondent is partially credible as to the reasons she fears returning to China, the Court will analyze her claim and decide it on other grounds.
ASYLUM Based on the evidentiary record, I conclude, as a matter of law, that the respondent has not met her burden of establishing that she is eligible for the relief of asylum. The issues before the Court with regard to the respondent's applications for relief are, (1) whether the respondent experienced harm that rises to the level of persecution, (2) whether persecution was on account of a protected ground, (3) whether

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the respondent demonstrated a well-founded fear on account of a protected ground, and (4) whether the respondent has shown that she will more likely than not be tortured in China with the consent or acquiescence of the government.
HARM The basis of the respondent's claim ls that she was arrested at a house church gathering on December 16, 2018, and detained for seven days. She states that she had become a Christian approximately four months earlier and had attended six or seven church meetings. Of the 20 people who were at the gathering on the 16th of December, 18 were arrested, including the respondent. Of the ones who were arrested, the respondent was the only one held for seven days, and the other 17 members are still living in China to this day. The respondent was given food and water and was interrogated on the third day. She said her release was contingent upon her sister being able to post the bail money, which was done on the seventh day of the respondent's detention. The only physical harm the respondent suffered by the police is that she was slapped by the lead police officer when she asked why she was being arrested. The other harm the respondent suffered has been discussed above in the credibility section, and the Court does not find the respondent's account of that harm by her fellow cellmates to be credible. It is not believable that after such a traumatic incident, the respondent would not know if she were assaulted by two or three people. She also provided conflicting versions of the level of harm experienced as a result of the assault, and she testified, somewhat incredibly, that a week later she was seeking medical attention for bruises. However, in connection with that hospital visit, the respondent said that the doctor said her bruises just needed some rubbing oil, and there was another problem the respondent had with her eardrum, and therefore the Court finds that that would have been credible. But that harm, assuming arguendo it is true

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that the respondent suffered some harm by her cellmates, is not the basis of her claim and is not included on the scales as a weight in the Court's analysis. That was not harm on account of her religion, that was the unfortunate incidental result of being detained with criminals. The harm here that would have been on account of her religion, would be the arrest, the seven days' detention, and the slap. This is not enough to meet her burden as to persecution. On this record, there is no past persecution, even viewing the evidence in the light most favorable to the respondent. The harm that the respondent experienced is unfortunate, but it simply does not rise to the level of persecution. It is well-established law that persecution within the meaning of the Act does not encompass all treatment that society regards as offe_nsive, unfair, unlawful, or unconstitutional.
WELL-FOUNDED FEAR Since the respondent has not shown past persecution, there is no presumption of a well-founded fear of future persecution, and the Court finds that her fear is neither well-founded nor objective. Additionally, the respondent has not met her burden to show that she cannot successfully relocate, China being a country of 1.4 billion people and the respondent having been detained at her local police station on one occasion. Granted, there is a possibility the local police would look for her if she returned to Fujian, although even this is somewhat refutable simply on the fact that the respondent lived in Fujian for two months without the police persecuting her or torturing her after her detention, and the other church members who were arrested continue to live there. The respondent would have had to show that she could not internally relocate before the Court would credit her with a well-founded fear of future persecution. There is insufficient evidence on this record to so show. On this evidence, she cannot demonstrate that her fear of persecution is well-founded, and her request for asylum will be denied.

A201-744-570

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0 O· Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 32 of 50

WITHHOLDING OF REMOVAL The respondent also seeks relief in the form of withholding of removal. Unlike asylum, withholding of removal is not discretionary. Thus, if a respondent meets her burden of proof, the Court must grant the relief. Withholding of removal has a higher standard, as a respondent must demonstrate a clear probability that she would face harm on the basis of a protected ground. With respect to a claim based on the same purprnted protected ground, an applicant who does not satisfy the asylum requirements, necessarily fails to meet the higher burden of proof necessary for withholding of removal. The respondent has failed to meet the lower standard of eligibility for asylum, so she cannot meet the higher standard for withholding. Consequently, the Court will deny this application as well.
CONVENTION AGAINST TORTURE It would appear that an independent analysis of the CAT claim would be required only where there is evidence that a respondent would face torture, her reasons unrelated to her unsuccessful claims for asylum and withholding of removal. The respondent has not presented evidence of a claim for relief unrelated to her underlying claims for asylum and withholding of removal. Additionally, even if the respondent had asserted another reason, based on the available evidence it is not more likely than not that the respondent would be tortured if returned to China. There was no evidence of torture on this record. Thus, the Court will deny CAT relief.
ORDER IT IS ORDERED that the respondent's application for asylum be and hereby is denied. IT IS ORDERED that the respondent's application for withholding be and hereby is denied.

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0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 33 of 50
IT IS ORDERED that the respondent's application for relief in the form of protection under the Convention Against Torture be and hereby is denied.
. The respondent is ordered removed to China.
MARIUM S. UDDIN
Immigration Judge

A201-744-570

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0 0 Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 34 of 50 ' '
CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE MARI UM S. UDDIN, in the matter of:
MEILING LIN A201-744-570 FORT WORTH, TEXAS was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.
JESSICA N KENTZELL (Transcriber) Deposition Services, Inc. -3 NOVEMBER 12, 2019 (Completion Date)

Case;•1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 35 of 5R0ESPONDENT
EXHIBIT
7
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT YORK , PA
FILE : A208 - 171 - 469
IN THE MATTER OF :
JUAREZ - JUAREZ , RODOLFO
RESPONDENT
IN REMOVAL PROCEEDINGS
!Y\,"\. V\V r'\
ORDER OF THE IMMIGRATION JUDGE WITH RESPECT TO CUSTODY

Request having been made for a change in the custody status of respondent pursuant to 8 CFR 236 . l(c) , and full consideration having been given to the representations of the Department of Homeland Security and the respondent , it is hereby

.,.

ORDERED that the request for a change in custody status be

denied .
✓ORDERED that the request be granted and that r espondent be :

released from custody on his own recognizance

£ \\ +~ fi,) (~ 5 L/released from cus~~dl .under bond of $

t:700

_V OTHER

, Copy of this decision has been served on the respondent and the Department of Homeland Security .

APPEAL :

reserved

YORK -Date : Oct

PRISON

+~Q i~

G~

~Jr '

Judge Immigration

XS

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 36 of 50

Andrew Mahon, Esq. Law Office of Mattes & Mahon 132 East Chestnut Street Lancaster, PA 17602 tel. (717) 299-8877 fax (717) 299-1535
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE YORK, PENNSYLVANIA

____________________________________

In the Matter of

)

)

JUAREZ JUAREZ, Rodlofo

)

)

Respondent

)

____________________________________)

File No. A 208-171-469 In Bond Proceedings

Immigration Judge: Not Assigned

Next Hearing: Not Set

MOTION FOR CUSTODY REDETERMINATION

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 37 of 50

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE YORK, PENNSYLVANIA

____________________________________

In the Matter of

)

)

JUAREZ JUAREZ, Rodlofo

)

)

Respondent

)

____________________________________)

File No. A 208-171-469 In Bond Proceedings

Immigration Judge: Not Assigned

Next Hearing: Not Set

MOTION FOR CUSTODY REDETERMINATION

1.

The respondent, Rodolfo Juarez Juarez, through counsel, Andrew Mahon,

Esq., hereby moves that this Honorable Court set a custody redetermination hearing and

release him on a reasonable bond.

2.

The Department of Homeland Security (DHS) is currently holding the

respondent in immigration custody at the York County Prison.

3.

Counsel will appear telephonically by cell phone at the following number—

610-585-8454.

4.

Wherefore, this Court should schedule the case for a custody redetermination

hearing.

Respectfully submitted:

s/Andrew Mahon_____ Andrew Mahon, Esq. The Law Office of Troy J. Mattes 132 East Chestnut Street Lancaster, PA 17602 tel. (717) 299-8877 fax (717) 299-1535
Date: March 24, 2020
2

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 38 of 50

CERTIFICATE OF SERVICE

CASE NAME:

JUAREZ JUAREZ, Rodlofo

CASE NUMBER: A 208-171-469

I HEREBY CERTIFY that on this 24th of March 2020, I caused to be served:

1) Motion

_____By placing a true copy thereof in a sealed envelope, with postage there on fully prepaid and causing the same to be mailed by first-class mail to the person at the address set forth below.

______By causing to be personally delivered a true copy thereof to the person at the address set forth below.

______By FEDERAL EXPRESS/UNITED PARCEL SERVICE/EXPRESS MAIL to the person at the address set forth below.

______By certified mail - return receipt requested - to the person at the address set forth below.

_XX__By e-service.

ADDRESS OF THE PERSON BEING SERVED

[X ] Office of Chief Counsel OCC / DHS / ICE 346 2350 Freedom Way Suite 254 York, PA 17402

[ ] Office of Chief Counsel ICE ICE/Litigation Service, Suite
900 Market Street Philadelphia, PA 19107

I declare under penalty of perjury that the foregoing is true and correct. Executed on the 24th day of March 2020.

s/ Andrew Mahon____ Andrew Mahon, Esq. Attorney for Respondent
3

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 39 of 50

United States Department of Justice Executive Office for Immigration Review
Immigration Court York, Pennsylvania

In the Matter of: JUAREZ JUAREZ, Rodlofo

A Number: A 208-171-469

ORDER OF THE IMMIGRATION JUDGE
Upon consideration of the respondent’s Motion for Custody Redetermination, it is HEREBY ORDERED that the motion be
□ GRANTED □ DENIED because:
□ DHS does not oppose the motion. □ The respondent does not oppose the motion. □ A response to the motion has not been filed with the court. □ Good cause has been established for the motion. □ The court agrees with the reasons stated in the opposition to the motion. □ The motion is untimely per ______________________. □ Other:

Deadlines:
⁭ The application(s) for relief must be filed by __________________________________. ⁭ The respondent must comply with DHS biometrics instructions by _________________.

___________________________ Date

____________________________________ Immigration Judge

________________________________________________________________________

Certificate of Service

This document was served by: [ ] Mail

[ ] Personal Service

4

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 40 of 50

To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

Date: ________________________

By: Court Staff___________________

United States Department of Justice

Executive Office for Immigration Review

Immigration Court

York, Pennsylvania

In the Matter of: JUAREZ JUAREZ, Rodlofo

A Number: A 208-171-469

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the respondent’s Motion for Custody Redetermination, it is HEREBY ORDERED that the motion be
□ GRANTED □ DENIED because:

□ DHS does not oppose the motion. □ The respondent does not oppose the motion. □ A response to the motion has not been filed with the court. □ Good cause has been established for the motion. □ The court agrees with the reasons stated in the opposition to the motion. □ The motion is untimely per ______________________. □ Other:

Deadlines:
⁭ The application(s) for relief must be filed by __________________________________. ⁭ The respondent must comply with DHS biometrics instructions by _________________.

___________________________ Date

____________________________________ Immigration Judge

________________________________________________________________________

Certificate of Service

This document was served by: [ ] Mail

[ ] Personal Service

To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

5

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 41 of 50

Date: ________________________

By: Court Staff___________________

United States Department of Justice

Executive Office for Immigration Review

Immigration Court

York, Pennsylvania

In the Matter of: JUAREZ JUAREZ, Rodlofo

A Number: A 208-171-469

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the respondent’s Motion for Custody Redetermination, it is HEREBY ORDERED that the motion be
□ GRANTED □ DENIED because:

□ DHS does not oppose the motion. □ The respondent does not oppose the motion. □ A response to the motion has not been filed with the court. □ Good cause has been established for the motion. □ The court agrees with the reasons stated in the opposition to the motion. □ The motion is untimely per ______________________. □ Other:

Deadlines:
⁭ The application(s) for relief must be filed by __________________________________. ⁭ The respondent must comply with DHS biometrics instructions by _________________.

___________________________ Date

____________________________________ Immigration Judge

________________________________________________________________________

Certificate of Service

This document was served by: [ ] Mail

[ ] Personal Service

To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

6

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 42 of 50

Date: ________________________

By: Court Staff___________________

7

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 43 of 50
RESPONDENT

UNITED STATES DEPARTMENT OF JUSTICE

EXHIBIT

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

YORK IMMIGRATION COURT

8

Respondent Name: GOMEZ-LOPEZ, CATALINO DOMINGO

Alien Registration Number: 215927752 Riders:

Address: C/O YORK ICE YORK, PA 17402
Attorney Name: Fist, Petra D.
Attorney Address: 1209 Kirkwood Hwy. Wilmington, DE 19805

In Custody Redetermination Proceedings Date: 02/20/2020

ORDER OF THE IMMIGRATION JUDGE
The respondent requested a custody redetermination pursuant to 8 C.F.R. § 1236. After full consideration of the evidence presented, the respondent's request for a change in custody status is hereby ordered:

Denied, because: The Respondent continues to pose a risk and danger to the community given, among other factors, his past criminal convictions and his law enforcement contacts.

Granted. It is ordered that Respondent be:

released from custody on his own recognizance.

released from custody under bond of $ .

other:

Other:

Appeal: Appeal Due:

Department of Homeland Security: Respondent:

waived waived

reserved reserved

Alien Number: 215-927-752 Page 1 of 2

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 44 of 50
Immigration Judge: Watters, Matthew 02/20/2020 Certificate of Service This document was served: Via: [ M ] Mail | [ P ] Personal Service | [ E ] Electronic Service To: [] Alien | [] Alien c/o custodial officer | [E] Alien's atty/rep. | [E] DHS By: Weaver, Pamela , Court Staff Date: 02/20/2020
Alien Number: 215-927-752 Page 2 of 2

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 45 of 50 RESPONDENT
EXHIBIT
9

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 46 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 47 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 48 of 50

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 49 of 50
RESPONDENT EXHIBIT
10

Case 1:20-cv-00480-JEJ Document 35-1 Filed 03/29/20 Page 50 of 50

DJF:jms UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

et al.,

: NO. 1:CV-20-0480

Petitioner-Plaintiffs

:

: (Jones, J.)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania and is a person of such age and discretion as to be competent to serve papers.
That on March 30, 2020, she served a copy of the attached

EXHIBITS IN SUPPORT OF RESPONDENTS’ RESPONSE AND

OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS AND

MOTION FOR TEMPORARY RESTRAINING ORDER AND OR

PRELIMINARY INJUNCTION

by electronic service pursuant to Local Rule 5.7 and Standing Order 04-6, ¶12.2 to

the following individual(s):

Addressees:

Witold J. Walczak

Carla G Graff

Erika Nyborg-Burch

vwalczak@aclupa.org carla.graff@dechert.com

enyborg-burch@aclupa.org

Muneeba S Talukder Thomas James Miller

Vanessa L. Stine

mtalukder@aclupa.org thomas.miller@dechert.com vstine@aclupa.org

Will W. Sachse

John Grogan

will.sachse@dechert.com jgrogan@langergrogan.com

s/Joanne M. Sanderson Joanne M. Sanderson Assistant United States Attorney

 
 Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents-Defendants.

Case No. 1:20-cv-00480-JEJ Judge John E. Jones III

REPLY BRIEF IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 2 of 18
ARGUMENT ...........................................................................................................5 I. Plaintiffs Have Standing ..............................................................................5 II. Habeas is an Appropriate Vehicle for Relief .............................................8 III. Nothing in the Government’s Opposition Brief Warrants Denying
a TRO and Leaving Plaintiffs in Harm’s Way ........................................10 A. Plaintiffs are likely to succeed on the merits. ................................10
1. The government mischaracterizes Plaintiffs’ brief as seeking discretionary release. ...............................................10
2. Plaintiffs have established a likelihood of establishing a constitution violation. .........................................................11
B. Leaving Plaintiffs in COVID-19’s Path Creates a Likelihood of Irreparable Harm ........................................................................13
C. The Public Interest Clearly Weighs in Favor of Releasing Plaintiffs ............................................................................................14
CONCLUSION......................................................................................................15
-i-

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 3 of 18
Defendants’ factual response is a mix of irrelevant, disingenuous and outright false assertions. Only the declaration of Captain Jennifer Moon merits any attention. The only other declaration, from Ada Rivera, is stale and irrelevant. It was prepared on March 18 for the lawsuit in Washington, Dawson v. Asher, and relates exclusively to ICE facilities in Tacoma, Washington. See Dkt. 35-1 at 10-14.
Captain Moon has been the Deputy Assistant Director for Healthcare Compliance with ICE Health Service Corps (IHSC) since November 2018. Dkt. 351 at 3, ¶ 1. She oversees Field Medical Coordinators (FMCs) in each of the ICE regions, but acknowledges that neither she nor the FMC’s are responsible for direct care in the facilities, which are provided by medical staff at each contract facility. Id. at 3-4, ¶¶ 2-3. Notably, Defendants have failed to dispute Plaintiffs’ claims about actual conditions at York, Clinton and Pike.
Captain Moon’s most disturbing claim is that as of Friday morning, March 27, the three detention facilities had “zero suspected cases of COVID-19” and had “zero confirmed cases of COVID-19.” Id. at ¶ 12. This is patently untrue. A press release issued by the Pike County Commissioners on March 29 states, in relevant part, as follows:
A staff member at the Pike County Correctional Facility (PCCF) tested positive for coronavirus (COVID-19) on March 24. The staff member has been quarantined at home since March 18. Inmates that had direct contact with the individual are now under quarantine. Other staff who had contact with the individual were sent home to self-quarantine. Ex. 30.
1

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 4 of 18
Captain Moon should have known a correctional officer tested positive three days before she signed her declaration, especially because the officer had contact with detainees and other staff. Moreover, she fails to deny the quarantine at York (Baranowsky Decl. ¶ 12 (Dkt. 2-18)) or mention that new quarantines are now in effect at Pike. Ex. 29, Stine Decl. ¶¶ 4-6. The imposition of quarantines entails a suspicion of infection, which Captain Moon denies. It makes little difference whether Captain Moon does not actually know what is happening at the three facilities or whether she is deliberately misleading the Court; the Court should discount her claims.
Even if the Court were to credit Captain Moon’s claims about ICE protocols and screening measures, Defendants fail to acknowledge, much less address, social distancing, which is the primary means of preventing COVID-19 transmission. Amon Supp. Decl. ¶ 3. The inescapable conclusion is that ICE has failed to take even tentative steps to implement social distancing at any of the facilities.
CDC guidance recognizes that social distancing is a “cornerstone of reducing transmission” in detention facilities. Amon Supp. Decl. ¶ 3. Indeed, governmental recognition of the necessity of social distancing to prevent the spread of COVID-19 has led to drastic measures across the county, including stay-at-home orders for over 200 million people. Yet Defendants continue to detain Plaintiffs in facilities that force individuals there into close quarters where they cannot maintain 6 feet of
2

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 5 of 18
distance. Id. Nowhere do Respondents assert that they have taken measures to mitigate these conditions, nor can they, given the institutional design of the facilities.
Defendants’ heavy reliance on the alleged screening procedures to argue the virus will not be introduced to the facilities is unavailing because these screening procedures are inadequate. Because of high levels of community spread ICE would need to monitor every newly arrived person for 14 days. Amon Supp. Decl. ¶ 4(b); see also Greifinger Decl. ¶ 10. Nowhere do the Defendants address how the three Pennsylvania facilities will be able to dramatically expand medical facilities and staffing to conduct this daily monitoring. Nor do they indicate where they will house these individuals while monitoring them for symptoms. Defendants also disregard the fact that staff who enter and leave every day are likely vectors for the virus while asymptomatic. See Amon Supp. Decl. ¶ 4(b); see also id. at ¶1 (documenting exponential rise in cases in Pennsylvania). Given asymptomatic transmission, to effectively screen staff, the facilities would have to conduct frequent (daily) tests, taken multiple times a day as staff and detainees entered the facility. Defendants do not claim to be implementing such widespread testing, nor could they honestly so allege, given the shortage of testing kits even at front-line hospitals. Amon Supp. Decl. ¶ 4(a). Thus, it is well beyond speculative that individuals will bring the virus into the facilities. And it has already entered Pike’s facility.
3

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 6 of 18
Defendants also fail to confront the reality that the detention centers are fundamentally ill-equipped to handle large numbers of cases once people begin getting sick. The protocol imagines that individuals who test positive will be isolated in individual rooms. However, the rate of infectious spread will overrun the physical capacities of the facilities, which have limited space to isolate detainees. Greifinger Decl. ¶ 10. Nor will cohorting, as Defendants apply that term, solve the problems. Defendants’ version of cohorting is to house people potentially infected together, in one space. Dkt. 35 at 5-6. For cohorting to be effective, people must be quarantined separately. Amon Supp. Decl. ¶ 5(a). The protocol also fails to account for the surge capacity needs as the level of medical encounters increases, and the number of available staff decreases, due to illness. Amon Supp. Decl. ¶ 4(f) (the protocol “lacks anticipation of what has already started elsewhere and will soon impact these facilities, including widespread infection of both detainees and staff with a massive impact on the level of staffing and capacity for clinical care.”)
Finally, Defendants’ suggestion that Plaintiffs are not suitable for release does not withstand scrutiny. Dkt. 35 at 25-27. Defendants’ case summaries allege dangerousness for only four of the thirteen plaintiffs, but even those claims are incorrect.1 Moreover, ICE has now released three of the thirteen – Mansyur, Prajoga
1 Plaintiffs Gomez-Lopez, Idowu, and Thakker were convicted of non-violent offenses, and Plaintiff Gomez Hernandez has a misdemeanor simple assault conviction, for which he was granted immigration relief, which requires a finding of
4

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 7 of 18
and Meiling—despite opposing release in their brief. Defendants’ failure to appreciate the gravity and magnitude of the problem, and denial of operational realities at the three facilities, may be the strongest evidence that plaintiffs are at imminent risk to health and life.
ARGUMENT I. Plaintiffs Have Standing
Plaintiffs must make allegations to show that (a) the harm for which they seek redress is an “injury in fact”, i.e., is particularized, concrete, and actual or imminent; (b) the harm is fairly traceable to the defendant; and (c) the harm is likely to be redressed by a favorable judgment. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019). Here, Plaintiffs have met all three requirements.
First, Plaintiffs plead the ultimate “particularized” harm: exposure to a lethal virus with no vaccine or cure. Plaintiffs must show only that the injury is “certainly impending” or “there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). “A future injury need not be ‘literally certain,’” Clapper v. Amnesty Int’l
good moral character and considers past criminal conduct. Additionally, while Defendants assert some Plaintiffs are a flight risk, they fail to explain why their supervision tools, including ankle monitors and regular ICE check-ins, would not be sufficient. See Schriro Decl. ¶¶ 24, 26-27.
5

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 8 of 18
USA, 568 U.S. 398, 432 (2013). Likely results that are “predictable” are sufficient. Dep’t of Commerce, 139 S. Ct. at 2565–66.
Plaintiffs’ harm is neither “hypothetical” nor “speculative.” Defendants want this Court to ignore the crisis that is rapidly unfolding, and which is quickly impacting the ICE Facilities, Defendants’ employees, and those in custody across the country. See Dkt. 8-1 at 15 n.6. Plaintiffs offered evidence that they are older or have pre-existing conditions, either of which puts them at heightened risk of infection, serious injury, and death from COVID-19. Dkt. 2-1, Ex. 1, Amon Decl. ¶¶ 11-22, 29-30, 42-48. This virus spreads fast, as does the rate at which it progresses once a person is sick. Dkt. 2-2, Ex. 2, Golob Decl. ¶ 6; Amon Decl. ¶¶ 11-22, 29-30; see also Dkt. 33-8, Schriro Decl. ¶¶ 14-23; Dkt. 33-7, Greifinger Decl. ¶¶ 3-13. The Court need only look to Rikers Island as a preview of what is to pass at these detention facilities.2 Such a higher likelihood of serious injury and death is more than enough to meet the “injury in fact” prong of the standing analysis. See New York, 139 S. Ct. at 2566 (finding injury not speculative when a “predictable” effect of government action).

2 Ex. 33, Andrew Denney, Number of NYC inmate with coronavirus soars as jail

population

dwindles,

New

York

Post

(Mar.

27,

2020), https://nypost.com/2020/03/27/number-of-nyc-inmates-with-coronavirus-

soars-as-jail-population-dwindles/ (noting that 103 inmates and 80 corrections

officers had tested positive for COVID-19).

6

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 9 of 18
Plaintiffs have not claimed that “detention per se poses an increased risk of health complications or death from [the virus].” (Opp’n at 12.) Plaintiffs instead offer expert evidence that their continued detention in the ICE Facilities places them at an increased chance of developing COVID-19 and suffering serious or fatal complications because of their vulnerable status. While detained, they have no ability to the necessary measures to avoid exposure—they cannot isolate themselves from others, practice the level of vigorous personal hygiene recommended by experts, and cannot have access to the testing and medical care needed should coronavirus strike. Plaintiffs accordingly have shown “injury in fact.”
Second, the wrong at issue is “fairly traceable” to the defendants. There is no credible dispute that Defendants are detaining Plaintiffs, and as Plaintiffs have shown, Defendants could release Plaintiffs at any time, but Defendants’ inactions are causing Plaintiffs’ continued confinement and their dire jeopardy. Defendants mischaracterize the risk of harm as controlled by factors completely beyond Defendants’ control: Plaintiffs’ medical history and/or age. Opp’n at 17-18. Defendants are wrong. It is their refusal to provide conditions that allow for the CDC-recommended social distancing, increasing the risk that Plaintiffs will become infected. The “measures” that Defendants have taken, such as “cohorting” to prevent spread (Opp’n at 6), are ineffective. Amon Decl. ¶¶ 44-45; Amon Supp. Decl. ¶ 5(a).
7

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 10 of 18
In short, there can be no doubt that Plaintiffs’ continued detention is “traceable” directly to Defendants.
Third, plaintiffs have shown “redressability” because release is the only remedy that will protect Plaintiffs’ rights. Plaintiffs’ immediate release is a remedy that is both within the power of this Court and the only remedy that would adequately address the constitutional violation at hand. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). The problem is Defendants’ failure to establish conditions that would allow for social distancing. If Plaintiffs are immediately released, the opportunities for social distancing are much greater outside of detention. Courts and public authorities in multiple jurisdictions across the country have recognized this and are responding to the threat of COVID-19 by issuing orders releasing individuals or delaying the start of their confinement due to the extraordinary circumstances the pandemic presents. See Dkt. 12, TRO Mem. at 16-17; Dkt. 27, Notice of Suppl. Auth. Only release can adequately address their right to reasonable protection from this lethal contagious disease. II. Habeas is an Appropriate Vehicle for Relief
Defendants assert that a habeas petition is not the appropriate vehicle for Plaintiffs’ constitutional claims and requested relief of temporary release amidst this
8

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 11 of 18
pandemic and national crisis. See Opp’n at 19-21. But twice this week courts issued writs of habeas corpus to protect detainees from the imminent threat of COVID-19.3
As Defendants acknowledge, “Section 2241 provides an avenue of relief for inmates who allege violations of the Constitution . . . which make the place, the conditions, or the duration of confinement illegal” and “directly implicate the fact or duration of an inmate’s confinement.” Opp’n at 20. These are precisely the claims Plaintiffs advance. The fact of Plaintiffs’ confinement during this pandemic in lessthan-hygienic conditions that preclude social distancing violates their due process rights. See Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). Put differently, the challenge to the conditions of Plaintiffs’ confinement are related to the fact and duration of their continued detention in the face of the COVID-19 pandemic.
Consistent with the writ of habeas corpus, Plaintiffs seek immediate (temporary) release—not liability or damages as contemplated by a 42 U.S.C. § 1983 claim. Leamer, 288 F.3d at 540; see United States v. Doe, 810 F.3d 132, 149 (3d Cir. 2015) (noting habeas courts are typically limited to the remedies of “release or vacating a conviction or sentence, or some combination of”). Accordingly, Plaintiffs’ constitutional claims properly fall “within the ‘core of habeas’ and require
3 See Dkt. 27, Notice of Suppl. Auth. (citing Coronel v. Thomas, No. 20-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Thomas, No. 20-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)).
9

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 12 of 18
sooner release if resolved in [their] favor.” Leamer, 288 F.3d at 544. In sum, Plaintiffs here do “seek speedier or immediate release from custody,” making them distinguishable from the plaintiff in Compton v. Ebbert, No. 1:18-cv-2115, 2020 WL 564795, at *2 (M.D. Pa. Feb. 5, 2020), a case recently decided by this Court. III. Nothing in the Government’s Opposition Brief Warrants Denying a TRO
and Leaving Plaintiffs in Harm’s Way A. Plaintiffs are likely to succeed on the merits.
1. The government mischaracterizes Plaintiffs’ brief as seeking discretionary release.
Plaintiffs’ argument on the merits is straightforward and supported by extensive case law: the conditions of confinement at the ICE Facilities make it impossible for these vulnerable Plaintiffs to protect themselves from the onslaught of coronavirus and the threat of COVID-19. These unsafe conditions violate Plaintiffs’ due process rights, as are they conditions in which Defendants are deliberately indifferent to Plaintiffs’ serious medical needs. TRO Mem. at 27–37.
In response, Defendants hide behind a strawman argument. Defendants argue that the due process claim has “nothing to do with conditions of Petitioners’ confinement,” and is instead about whether Defendants should exercise “discretion to release” under ICE regulations. Opp’n Br. at 21–24. Plaintiffs do not ask ICE to exercise discretion; that time has passed for the ten Plaintiffs who remain in custody. Simply put, Defendants failed to meet their constitutional obligation. This Court must now step in to end this ongoing constitutional violation and protect Plaintiffs.
10

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 13 of 18
For the same reason, the circumstances surrounding why particular Plaintiffs were granted or denied discretionary release under ICE regulations, Opp’n at 25–27, are beside the point. What matters here is the need for this Court to safeguard the constitutional rights of detainees when Defendants have failed.
2. Plaintiffs have established a likelihood of establishing a constitution violation.
Plaintiffs established that deliberate indifference to a serious medical need violates the constitutional rights of civil detainees. Defendants have offered two defenses: first, that the risk of COVID-19 is not sufficiently “serious,” and second, that Defendants are not deliberately indifferent because ICE has taken some (inadequate) steps to address COVID-19. Neither argument holds water.
First, Defendants argue that the risk of COVID-19 is not sufficiently “serious,” based on the fact that Plaintiffs have not yet been “unequivocally exposed to COVID-19 in York, Pike, or Clinton County.” (Opp’n at 29.) They argue that the risk of COVID-19 does not rise to the level of an inmate’s cellmate smoking cigarettes, which the Supreme Court found sufficiently serious. (Opp’n at 28 (citing Helling v. McKinney, 509 U.S. 25 (1993)). Defendants are wrong on both the facts and the law. There is evidence that Plaintiffs have been exposed to coronavirus. See supra at pp. 1-2. Moreover, the law is clear that Plaintiffs need not wait to get sick and die before bringing constitutional claims. As the Supreme Court explained, “a
11

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 14 of 18
prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery.” Helling, 509 U.S. 25 at 33.
Second, Defendants argue that Plaintiffs cannot show deliberate indifference because of the measures ICE has purportedly taken to address COVID-19. But these measures are inadequate according to public health experts. Plaintiffs’ expert Dr. Joseph Amon has explained that “none of the ICE facilities are following CDC guidance in relation to social distancing putting all detainees, and especially those at high risk of severe disease and death, in jeopardy.” See Amon Decl., Dkt. No. 2-1 at 12. Social distancing, self-isolation, and improved hygiene can make a difference in protecting from the spread of COVID-19. Plaintiffs offered evidence that this is not happening at the ICE Facilities. See generally TRO Mem. at 11–14.
Finally, Defendants argue that Plaintiffs’ conditions of confinement are not “excessive” relative to the government’s interest in “preventing detained aliens from absconding and ensuring that they appear for removal proceedings.” (Opp’n Br. at 31–33.) In support, Defendants point to other courts’ refusal to release detainees due to COVID-19 concerns. (Opp’n Br. at 32–33.) Those decisions, however, do not relate to the facts on the ground at the ICE Facilities in this case. For example, in Dawson v. Asher, the court made its decision in part because there had not yet been evidence of a COVID-19 outbreak. No. 20-0409, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020). Here, there is evidence that COVID-19 has spread to
12

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 15 of 18
at least one of the ICE facilities. Moreover, every day counts in the context of COVID-19. When Dawson was decided on March 19, there were about 15,000 reported cases of COVID-19 in the country; as of yesterday that number is over 140,000 and there have now been more than 2,400 COVID-19 deaths reported.4 The inexorable march of COVID-19 requires immediate action to protect the Plaintiffs.
B. Leaving Plaintiffs in COVID-19’s Path Creates a Likelihood of Irreparable Harm
Plaintiffs have submitted extensive evidence that they are at risk of COVID19 because of conditions at the ICE Facilities. TRO Mem. at 9-23. It is beyond dispute that COVID-19 can lead to serious complications and death, even when the patient receives medical care. It is hard to imagine a more “irreparable harm.” Defendants, however, argue that the risk to Plaintiffs is “not only speculative, but unlikely” and that “[i]f Petitioners continue to receive adequate medical care and shelter from COVID-19 in immigration detention, their harm is non-existent much less irreparable.” (Opp’n at 34). The assertion that the risk of harm to detainees from COVID-19 is “non-existent” beggars belief. As discussed above, there are
4 See Ex. 31, Coronavirus Disease 2019 (COVID-19), Center for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/casesin-us.html (last visited Mar. 30, 2020).
13

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 16 of 18
already reported cases of COVID-19 at the ICE Facilities. See supra pp. 1-2. In detention facilities around the country, COVID-19 is exploding.5
Defendants argue that “ICE’s procedures for COVID-19 are identical to those recommended by the CDC and designated experts on infectious disease and detention facilities.” (Opp’n at 36). But as noted above, the evidence shows that the government is not adequately responding. ICE’s litany of half measures—restricting visitors, “educat[ing] detainees,” intake screenings, etc. (Dkt. No. 35-1 at 10–11)— simply fail to address the once-in-a-generation risk that COVID-19 poses to detainees. Indeed, the ICE Guidance does not even mention social distancing, improved personal hygiene, and increased testing and medical care, and its specific Guidance on detention was last updated on March 15. See ICE Guidance, available at https://www.ice.gov/coronavirus.
C. The Public Interest Clearly Weighs in Favor of Releasing Plaintiffs Defendants do not contest the public health evidence that both the public generally and ICE specifically have a strong interest in minimizing the spread of COVID-19. TRO Mem. at 39-42. Instead, Defendants gesture vaguely to a
5 See, e.g., Ex. 32, Sam Kelly, 101 Inmates at Cook County Jail confirmed positive for COVID-19, Chicago Sun Times (Mar. 30, 2020), https://chicago.suntimes.com/coronavirus/2020/3/29/21199171/cook-county-jailcoronavirus-positive-101-cases-covid-19 (explaining that Cook County Jail in Illinois went from two cases to more than a hundred in less than a week).
14

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 17 of 18
“significant” public interest in “enforcement of United States immigration laws.” Opp’n at 36. That argument is a red herring, and beside the point. Plaintiffs do not ask Defendants to suspend enforcement of U.S. immigration laws. Undisputed evidence in the record shows that ICE has a variety of tools to track individuals subject to immigration proceedings without detaining them. TRO Mem. at 24. Temporarily releasing Plaintiffs under these exigent circumstances does not preclude ICE from pursuing its goals or enforcing the immigration laws.
CONCLUSION Time is running out to act. The Court should enter a TRO and/or preliminary injunction releasing Plaintiffs who remain in custody.

Dated: March 30, 2020
/s/ Will W. Sachse Will W. Sachse, Esq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com

Respectfully Submitted,
/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513

15

Case 1:20-cv-00480-JEJ Document 46 Filed 03/30/20 Page 18 of 18

David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org
*admitted pro hac vice

E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

16

Case 1:20-cv-00480-JEJ Document 46-1 Filed 03/30/20 Page 1 of 2
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,
vs. CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,

Case No. 1:20-cv-00480 Judge John E. Jones III

Respondents-Defendants.

DECLARATION OF WITOLD J. WALCZAK Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. My name is Witold J. Walczak. I am the Legal Director for the American Civil Liberties Union of Pennsylvania and am counsel for PetitionersPlaintiffs. I make this declaration in support of Petitioners’/Plaintiffs’ Verified Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and Motion for TRO and/or PI. 2. Attached hereto are true and correct copies of the following materials, identified by the following exhibit designations in Plaintiffs’ reply brief in
1

Case 1:20-cv-00480-JEJ Document 46-1 Filed 03/30/20 Page 2 of 2
support of Petitioners’/Plaintiffs’ Verified Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief and Motion for TRO and/or
PI:
Ex. 28 Supplemental Declaration of Joseph J. Amon, Ph.D. MSPH
Ex. 29 Declaration of Vanessa L. Stine, Immigrants’ Rights Attorney, ACLU of Pennsylvania
Ex. 30 Update from Pike County Correctional Facility on COVID-19 (posted March 29, 2020).
Ex. 31 Center for Disease Control and Protection website page entitled, Cases in U.S., accessed on March 30, 2020.
Ex. 32 Article by Sam Kelly published in the Chicago Sun-Times on March 30, 2020, entitled 101 Inmates at Cook County Jail Confirmed Positive for COVID-19.
Ex. 33 Pennsylvania Department of Health website page entitled, COVID-19 Cases in Pennsylvania, accessed on March 30, 2020.
Article by Andrew Denney published in the New York Post on Ex. 34 March 27, 2020, entitled Number of NYC Inmates with
Coronavirus Soars as Jail Population Dwindles.

Dated: March 30, 2020

/s/ Witold J. Walczak Witold J. Walczak

2

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 1 of 7
Exhibit 28

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 2 of 7
Declaration of Joseph J. Amon, Ph.D. MSPH
I, Joseph J. Amon, declare as follows:
1. I have reviewed the declarations of Moon and Rivera, ICE guidance on its website on COVID-191, and ICE’s protocol for a clinical response (“Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19)” version 6.0 issued March 6, 2020).2 Based on my training and decades of professional experience in public health, the procedures described therein are entirely inadequate to prevent or mitigate the rapid transmission of COVID-19 in York, Clinton and Pike County Prisons. I am unaware of any epidemiologist or any public health expert who would consider these procedures to be sufficient preventive measures.
2. In paragraph 5, Captain Moon states in her declaration that, “Since the onset of Coronavirus Disease 2019 (COVID-19) reports, ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.” Much has occurred with this fast-spreading virus since Captain Moon signed her declaration on Friday morning, March 27: a. As of March 30 (8 am) ICE guidance available online, last updated on March 28, indicates that there were 2 confirmed cases of COVID-19 among ICE detainees, 5 ICE detention facility employees, as well as 19 ICE employees not currently assigned to detention facilities. On March 30 around 2 pm, the Bergen County Sheriff announced that there was another confirmed case of an ICE detainee infected with COVID-19 in Bergen County Jail.3 b. In paragraph 12 of the declaration, Moon states that there are zero suspected or confirmed cases of COVID-19 at Pike. However, the Pike County government’s website posted information on March 29th sharing information from the Pike County Commissioners that, “A staff member at the Pike County Correctional Facility (PCCF) tested positive for coronavirus (COVID19) on March 24. The staff member has been quarantined at home since March 18.” The statement goes on to say that “Other staff who had contact with the individual were sent home to self-quarantine.”4 c. In total, Pike County, so far, has reported 33 cases and 1 death due to COVID19. These are likely underestimates. It is reasonable to expect this kind of introduction of COVID-19 into Pike County Correctional Facility from staff exposed in the community given the current local transmission of COVID-19 in Pike County and in Pennsylvania, reflecting the continued movement of people between specific locales.
1 https://www.ice.gov/coronavirus accessed March 30, 2020. 2 https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus accessed March 30, 2020 3 https://www.insidernj.com/sheriff-cureton-confirms-two-additional-positive-covid-19-cases-among-bergen-jail-
population/ accessed March 30, 3030. 4 https://www.wnep.com/article/news/health/coronavirus/pike-county-prison-employee-tests-positive-for-
covid19/523-661786bf-46ed-42b2-96fa-c5e563fbbcda accessed March 30, 2020.

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 3 of 7

d. There has been an exponential increase in cases and deaths in Pennsylvania over the past two weeks, and the pace has accelerated since March 27:5

Date 12‐Mar 13‐Mar 14‐Mar 15‐Mar 16‐Mar 17‐Mar 18‐Mar 19‐Mar 20‐Mar 21‐Mar 22‐Mar 23‐Mar 24‐Mar 25‐Mar 26‐Mar 27‐Mar 28‐Mar 29‐Mar 30‐Mar

Cases (cumulative)
28 41 58 63 76 96 133 185 268 371 479 644 851 1127 1687 2218 2751 3394 4,087

Deaths (cumulative)
0 0 0 0 0 0 1 1 1 2 3 6 7 11 16 22 34 38 48

3. Social distancing is the primary way to mitigate risk of COVID-19 infection and spread. The CDC guidance for detention facilities states: “Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission [emphasis added] of respiratory diseases such as COVID-19”. Social distancing, simply understood in the context of COVID-19 is keeping individuals six feet away (in all directions) from one another. It is also the basis for the extraordinary measures being taken nationwide to restrict movement and contact from individuals in the community. Yet, the declarations of Moon and Rivera make zero reference to social distancing, leading to the assumption that it is not being implemented in the detention facilities. The CDC outlines the following social distancing steps for detention facilities, which include reassigning sleeping arrangements to provide 6 feet or more of space in all directions, spacing seating in the dining areas so that people remain 6 feet apart while eating, and designating rooms near each housing unit to evaluate individuals with COVID-19 symptoms so

5 See https://www.health.pa.gov/topics/Documents/Diseases%20and%20Conditions/COVID19%20Situation%20Reports/20200325nCoVSituationReportExt.pdf; accessed March 26, 2019 see also: https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx accessed March 30, 2020.

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 4 of 7
that they do not walk through the facility for medical evaluation.6 While neither of the declarations I reviewed from the government experts addressed how, if at all, these measures can and are being implemented at the three facilities in Pennsylvania, the declarations I previously reviewed from the individuals housed in each of these facilities identify multiple violations of the CDC guidance on social distancing. I previously outlined the problems with crowding in the facility in my original declaration. Given the population sizes in the facilities, the limited amounts of physical space, increasingly limited staffing as staff are in self-quarantine, and the security measures that require staff and detained individuals to come into contact, it is my belief that it will not be possible to implement the CDC-recommended measures at the detention facilities in Pennsylvania.
4. In respect to ICE guidance on its website on COVID-19 as well as its protocol for a clinical response (“Interim Reference Sheet on 2019-Novel Coronavirus (COVID19)” version 6.0 issued March 6, 2020), the screening procedures described will not protect Plaintiffs from COVID-19. The protocols do not address widespread community infection, imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. a. Screening measures will not be sufficient to identify infected individuals who come in because of asymptomatic transmission and community spread that makes asking about past contacts insufficient. Given the nationwide shortage of testing equipment and laboratories, ICE’s screening inquiry regarding whether a detainee has had close contact with a person with laboratory- confirmed COVID-19 in the past 14 days is inadequate to properly assess the detainee’s potential exposure to the virus. This inquiry is particularly egregious given known wealth disparities in access to testing. Asking about travel through areas with sustained community transmission is also insufficient: given community spread, it is likely that almost everyone in the general public who is not practicing social distancing is in contact with the COVID-19 virus. b. The protocol does not address how the facilities will account for the large number of people who will have potentially been exposed to COVID-19. The protocol states that people with suspected COVID-19 contact will be monitored for 14 days with symptom checks. The protocol is written as if this is a rare occurrence, reflecting smaller outbreak management, but the prevalence of COVID-19 is now growing to such an extent that a large share of newly arrived people will have recent contact with someone who is infected. ICE would need to use this level of monitoring for every person arriving in detention. Accordingly, ICE would need to dramatically expand its medical facilities and staffing to conduct this daily monitoring of every newly arrived person for 14 days. It would also need the physical infrastructure in which to isolate these individuals. The protocol fails to contemplate these necessary changes. c. The protocol also does not account for the fact that staff are coming into the facility daily from affected communities, making them an especially important vector in this outbreak. Given asymptomatic transmission, to effectively screen
6 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html accessed March 30, 2020.

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 5 of 7
staff, the facilities would have to conduct frequent (daily) tests, implemented at multiple times a day as staff and detainees entered the facility. In addition to the cost and labor required to implement this approach, the United States is currently facing a shortage of COVID-19 tests that make such a solution impracticable: In a survey of U.S. cities (that included Philadelphia, Pittsburgh, Erie, and Easton), 92.1% of cities reported that they do not have an adequate supply of test kits.7 Shortages are likely to become more severe over the next three to four weeks when there will be a major shortage of chemical reagents for COVID-19 testing and enormous increases in demand.8 Given the shortage of COVID-19 testing in the United States, it is likely that jails are and will continue to be unable to conduct aggressive, widespread testing to identify all positive cases of COVID19. d. The protocol fails to include guidance for health staff or administrators regarding how to plan their surge capacity needs as the level of medical encounters increases, and the number of available staff decreases, due to illness. This is a critical component of the CDC guidance on long term care response and is a critical omission in this protocol. There is no guidance for clinical staff on when to test patients for COVID- 19, which leaves detained patients at a significant disadvantage. While the guidelines for testing may evolve over time, the protocol should create a structure for daily dissemination of testing criteria from ICE leadership, and time for daily briefings among all health staff at the start of every shift, to review this and other elements of the COVID-19 response. This briefing must include participation by epidemiologists tasked to COVID- 19 response who are also coordinating with local and federal COVID-19 activities. Although the protocol states that “In other cases, including when a detainee requires a higher level of care, they are sent to a local hospital…” for testing, in practice the transfer of suspected COVID-19 positive patients, under strict isolation conditions, at the anticipated number of cases in need of testing would potentially put detention staff at risk and overburden available detention facility staff.
e. The ICE protocol provides no guidance about identification of high-risk patients at the time of entry or any special precautions that will be enacted to protect them. The protocol also fails to address the identification of high-risk patients who have
already been admitted. Because the ICE response fails to create increased protections for people with risk factors for serious illness and death from COVID-19, they are unlikely to detect illness in these patients until many of them are critically ill. As with the lack of guidance on testing, this lack of clear guidance on how to determine who meets criteria for hospital transfer may prove deadly for detained people. f. It is my view that the protocol is crafted to address a relatively small and time-
limited outbreak and lacks anticipation of what has already started elsewhere and will soon impact these facilities, including widespread infection of both detainees
7 https://www.usmayors.org/issues/covid-19/equipment-survey/ accessed March 28, 2020. 8 https://www.nytimes.com/2020/03/27/opinion/coronavirus-trump-testing-shortages.html accessed March 28,
2020.

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 6 of 7
and staff with a massive impact on the level of staffing and capacity for clinical care. The current outbreaks across the country should be a cautionary example of infectious spread in these congretive environments: In Cook County Jail, Chicago with 89 inmates and 12 staff members have confirmed cases of the virus9, up from 38 inmates two days prior.10 At Rikers Island in New York, on Saturday March 21, a jail oversight agency indicated that 21 inmates and 17 employees tested positive.11 As of Saturday, March 28, 104 staff and 132 individuals in custody had tested positive at Rikers and city jails in New York City.12 The Legal Aid Society in New York recently reported that the infection rate for COVID-19 at local jails is more than seven times higher than the rate citywide and 87 times higher than the country at large.13
5. ICE’s procedures upon identification of a positive test case also do not address key components of the CDC’s guidance aimed at limiting spread within detention facilities. a. The Moon declaration states that individuals who have had contact with a person who tests positive for COVID-19 will be placed in cohorts. However, the CDC guidance states specifically that "Cohorting should only be practiced if there are no other available options” and exhorts correctional officials: “Do not cohort confirmed cases with suspected cases or case contacts.” [emphasis in original]. Individuals who are close contacts of different cases should also not be kept together. Moon’s declaration does not differentiate between confirmed cases and suspected cases. Some individuals identified as “close contacts” will likely be infected while others will not. “Cohorting” of all contacts together without strict attention to masking and proper hygiene and adequate distancing could mean disease transmission will be facilitated rather than prevented. In large cohorts, this will man transmission to many individuals. b. The procedures for isolation state: “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.” These procedures would be sufficient to address a limited number of infected individuals. However, many facilities only have 1-4 of these medical rooms available in the facility. Given the rate of spread in detention facilities, there will be many more than 1-4 people with COVID-19 in the detention centers. This limited physical infrastructure will mean that ICE cannot comply with this protocol.
9 https://www.politico.com/news/2020/03/29/federal-prison-first-coronavirus-death-153387 accessed March 29, 2020.
10 https://www.nbcchicago.com/news/local/cook-county-jail-says-17-inmates-have-tested-positive-forcoronavirus/2244652/ accessed March 26, 2020.
11 https://www.nbcnewyork.com/news/coronavirus/21-inmates-17-employees-test-positive-for-covid-19-on-rikersisland-officials/2338242/ accessed March 23, 2020.
12 https://apnews.com/4e1e4ffaeb6bf9a9fabcc566fe5b110d accessed March 29, 2020. 13 See: https://newyork.cbslocal.com/2020/03/26/coronavirus-rikers-island/ accessed March 26, 2020

Case 1:20-cv-00480-JEJ Document 46-2 Filed 03/30/20 Page 7 of 7
6. I believe that ICE has taken some steps in response to COVID-19. ICE guidance and the declarations by Moon and Rivera mention such steps as suspending inmate visits, increasing sanitization of certain areas, and the provision of hand sanitizer to inmates. However, none of these steps are adequate to mitigate the transmission of the virus in the absence of social distancing measures and without vastly better monitoring and isolation procedures of detainees and screening of staff. Even in the best scenario, given the physical infrastructure of facilities, the challenges of providing security without close contact, and the lack of proper equipment (such as masks) to prevent transmission, I do not believe detention facilities are equipped to ensure the safety of those in their custody. While there are risks to individuals in the community, releasing individuals at highest risk who can then self-isolate – either in their homes or in facilities arranged by the local department of health – provides a significantly better likelihood of preventing infection, disease spread and death, both in the facility and in the community at large.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day in March 2020 in Princeton, New Jersey.
Joseph J. Amon, PhD MSPH

Case 1:20-cv-00480-JEJ Document 46-3 Filed 03/30/20 Page 1 of 2
Exhibit 29

Case 1:20-cv-00480-JEJ Document 46-3 Filed 03/30/20 Page 2 of 2
Declaration of Vanessa Stine
1. My name is Vanessa L. Stine. I am an Immigrants’ Rights Attorney with the American Civil Liberties Union (ACLU) of Pennsylvania.
2. I make this declaration in support of Petitioners’/Plaintiffs’ Petition for Writ of Habeas Corpus and Injunctive and Declaratory Relief and Motion for TRO and/or PI.
3. I have communicated – by telephone, text and email – with our clients, their family members and several lawyers. Based on these communications, I have now been advised by multiple people that a quarantine, at least for some units and possibly the entire jail, has been instituted at Pike County Correctional Facility.
4. One of my communications was a telephone call on Sunday, March 29, 2020 at 5:21 p.m. with our client, Mr. Thakker. He told me that his cell and another one on his block have been placed on quarantine. His entire block is locked in their cells. The two quarantine cells are let out at the same time to use the showers and make phone calls. He said that the other cells are let out at a different time.
5. On Sunday, March 29, 2020 at approximately 10:10 a.m. my colleague, attorney Muneeba Talukder, was told by a Pike County Correctional Facility staff person that the whole jail is on quarantine, so it will take a few hours to have the detainee return her call.
6. On Monday, March 30, 2020 at 9:49 a.m., I contacted Pike County Correctional Facility and spoke with the Shift Commander, a Sergeant Schwartz. I explained to him that I was trying to get in touch with my client, Mr. Thakker, and asked if he could tell me more about what is going on at the facility. He told me that they are on lockdown due to the pandemic and potential to spread in the facility. He said that Mr. Thakker’s ability to contact me will be varied, but that he would call down to the block and tell them to tell him to call me when he can. As of 4:13pm this afternoon, I have not received a call from Mr. Thakker.
I, Vanessa L. Stine, certify that the foregoing is based upon information and belief from my conversations with clients, their family members, my colleague, and staff at Pike County Correctional Facility.
/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) American Civil Liberties
Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 vstine@aclupa.org
1

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Exhibit 30

Case 1:20-cv-00480-JEJ Document 46-4 Filed 03/30/20 Page 2 of 25

Case 1:20-cv-00480-JEJ Document 46-4 Filed 03/30/20 Page 3 of 25

Case 1:20-cv-00480-JEJ Document 46-4 Filed 03/30/20 Page 4 of 25

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Exhibit 31

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Exhibit 32

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Case 1:20-cv-00480-JEJ Document 46-6 Filed 03/30/20 Page 3 of 4

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Exhibit 33

Cases

Case 1:20-cv-00480-JEJ Document 46-7 Filed 03/30/20 Page 2 of 6

3/30/20, 2:45 PM

​COVID-19 Cases in Pennsylvania*

​Negative

Positive

​Deaths

33,777

4,087

48

* Map, tables and case counts last updated at 1:15 p.m. on 3/30/2020
Positive Cases by Age Range to Date

​Age Range
​0-4 ​5-12 ​13-18 ​19-24 ​25-49 ​50-64 ​65+

​Percent of Cases ​< 1% ​< 1% ​1% ​10% ​41% ​28% ​19%

* Percentages may not total 100% due to rounding

Hospitalizations by Age Range to Date

Total number of hospitalizations since 3/6/2020: 386

​Age Range

​Percent of Cases

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

Page 1 of 5

Cases
​0-4 ​5-12 ​13-18 ​19-24 ​25-49 ​50-64 ​65+

Case 1:20-cv-00480-JEJ Document 46-7 Filed 03/30/20 Page 3 of 6 ​1% ​0% ​1% 2% ​22% ​25% ​49%

* Percentages may not total 100% due to rounding

3/30/20, 2:45 PM

County Case Counts to Date

County

Number of Cases

Adams

8

Allegheny

290

Armstron

3

g

Beaver

44

Berks

82

Blair

6

Bradford

3

Bucks

246

Butler

49

Deaths 2
3 2

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

Page 2 of 5

Cases

Case 1:20-cv-00480-JEJ Document 46-7 Filed 03/30/20 Page 4 of 6

Cambria

2

Cameron

1

Carbon

13

Centre

24

Chester

146

Clarion

1

Clearﬁeld

4

Columbia

6

Crawford

4

Cumberla

24

1

nd

Dauphin

36

Delaware

303

4

Erie

13

Fayette

11

Franklin

12

Greene

7

Huntingd

1

on

Indiana

2

Juniata

3

Lackawan

62

2

na

Lancaster

97

2

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

3/30/20, 2:45 PM Page 3 of 5

Cases

Case 1:20-cv-00480-JEJ Document 46-7 Filed 03/30/20 Page 5 of 6

Lawrence

10

1

Lebanon

27

Lehigh

231

3

Luzerne

150

3

Lycoming

4

Mckean

1

Mercer

7

Mifﬂin

1

Monroe

182

7

Montgom

540

5

ery

Montour

10

Northamp

184

5

ton

Northumb

1

erland

Perry

1

Philadelp 1007

7

hia

Pike

39

1

Potter

2

Schuylkill

30

Snyder

2

Somerset

2

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

3/30/20, 2:45 PM Page 4 of 5

Cases

Case 1:20-cv-00480-JEJ Document 46-7 Filed 03/30/20 Page 6 of 6

Susqueha

1

nna

Tioga

1

Union

4

Venango

1

Warren

1

Washingt

26

on

Wayne

10

Westmore

55

land

York

54

3/30/20, 2:45 PM

View as a clickable county map !
(https://www.google.com/maps/d/embed?mid=1lpLPPrltIuVkwFtXhoWdWEA4B1DvNmne)

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

Page 5 of 5

Case 1:20-cv-00480-JEJ Document 46-8 Filed 03/30/20 Page 1 of 3
Exhibit 34

3/30/2020

Case 1:20-cv-00480-JEJNumDbeor ocfuNmYCeinnmtat4es6w-i8th coFronilaevidrus0h3its/t3ri0ple/2di0gits Page 2 of 3

METRO

Number of NYC inmates with coronavirus soars as

jail population dwindles

By Andrew Denney

March 27, 2020 | 5:23pm

Jail cells are seen in the Enhanced Supervision Housing Unit at Rikers Island.
Reuters
Sign up for our special edition newsletter to get a daily update on the coronavirus pandemic.

The city Department of Correction reported a sharp spike on Friday in the number of employees and inmates at Rikers Island and other jails who have tested positive for COVID-19.

The department counted 103 positive tests among inmates, up from 73 on Thursday.

As for correction o cers and other employees, 80 were con rmed to have the bug as of Friday, up from 58.

DOC does not clarify which of its facilities coronavirus was found at but the vast majority of inmates are locked up in the sprawling jail facility on Rikers Island.

The increase comes as hundreds of inmates have been or will soon be released from custody. There were about 5,200 inmates in DOC jails at the beginning of the week — by Friday, the number had fallen to 4,860, according to city data.

https://nypost.com/2020/03/27/number-of-nyc-inmates-with-coronavirus-soars-as-jail-population-dwindles/

1/3

3/30/2020

Case 1:20-cv-00480-JEJNumDbeor ocfuNmYCeinnmtat4es6w-i8th coFronilaevidrus0h3its/t3ri0ple/2di0gits Page 3 of 3

In a phone interview with The Post, an inmate at Rikers said that sta has been enforcing social distancing during meal time when prisoners

pack together at cafeteria tables.

But inmates are still coming in close contact in common areas in their dormitories and have to sleep just a few feet away from their cellmates — as well as share toilets with them, said Aziz Coleman, who is being held at the Otis Bantum Correctional Center on Rikers awaiting transfer to a state-run facility.

The Otis Bantum Correctional Center (OBCC) on Rikers Island
New York Post

Coleman, 26, said he is among the inmates who are vulnerable to catching coronavirus — he recently had his appendix removed and has an infection below his pancreas, he said.

Coleman is supposed to serve a 97-day sentence in state prison for breaking his parole, but transfers to state prisons have been suspended since March 19. He said that he should be allowed to stay on house arrest until he can get sent upstate.

“It’s crazy,” he said. “What are we supposed to do? Stay here and wait until the coronavirus goes away?”

As the number of positive COVID-19 cases on Rikers grows, city o cials, defense attorneys and prosecutors have been working to identify prisoners who could be moved from jail to house arrest while they await trial.

SEE ALSO

The Legal Aid Society has led four lawsuits over the past week to get some of its clients out of Rikers and to win freedom for juvenile detainees.

On Friday, Legal Aid announced that a Bronx judge signed o on the release of 106 inmates who were being held on technical parole violations.

Legal Aid Society sues ACS to release juveniles amid coronavirus crisis

FILED UNDER CORONAVIRUS, CORONAVIRUS IN NY, JAIL, RIKERS ISLAND

https://nypost.com/2020/03/27/number-of-nyc-inmates-with-coronavirus-soars-as-jail-population-dwindles/

 
 Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

MEMORANDUM AND ORDER March 31, 2020
Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human

1 Petitioners’ counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
1

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 2 of 25
rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 12, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 12, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 12, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and
2

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 3 of 25
an ulcer. (Doc. 12, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 12, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 12, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 12, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 12, Ex. 11). Oyediran is a 40-year-old asthmatic suffering from high blood pressure and cholesterol. (Doc. 12, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 12, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 12, Ex. 16).
Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 12 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting
3

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 4 of 25
Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across
the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673.3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners’ claims for habeas relief.

2

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

3

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31,

2020).

4

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 5 of 25
A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents raise two threshold challenges to the Petitioners’ Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents’ standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in 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.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the
5

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 6 of 25
Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order i. Legal Standard
Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the
6

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 7 of 25
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the temporary restraining order. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and
7

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 8 of 25
probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population.4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by

4

We also have allegations that prison guards have shown symptoms while interacting with

inmates.

8

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 9 of 25

ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
a. Seriousness of the virus COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15). In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.10, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and

5

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31,

2020).

6

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March

17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

9

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 10 of 25
can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus The United States now records more confirmed cases of COVID-19 than any other country in the world.7 As of the date of this writing, there were in excess of

7

Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of

Coronavirus than any Other Country, CNN,

https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last

accessed March 31, 2020).

10

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 11 of 25
164,458 cases of the virus in America, with 3,167 fatalities.8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities.9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County.10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus.11

8

Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US:

Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ng-

interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed

March 31, 2020).

9

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

10

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-of-covid-19counties-now-total-19/ (last accessed March 31, 2020).

11

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Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing highrisk populations.
c. Unique nature of detention facilities Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 12, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 12, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.). Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
12

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 13 of 25
[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).12
The experts contrasted this scenario with a situation in which ICE detainees were
released from “high risk congregate settings,” allowing the “volume of patients sent
to community hospitals to level out,” which they believed would provide much more
favorable outcomes, both for the detainees and the surrounding communities. Id. “At
a minimum,” these health experts urged, the government “should consider releasing
all detainees in high risk medical groups such as older people and those with chronic
diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow
safe social distancing practices and are unlikely to have the ability to provide
adequate medical care in the case of a COVID-19 outbreak. Id. The consequences,
they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/ (last accessed March 28, 2020).
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Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 12, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 12, Ex. 11). Detainees must eat their meals four-to-a-table, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 12, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 12, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting
14

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 15 of 25
COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 12, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 12, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 12, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 12, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus’s incubation period. The Petitioner’s declarations, however, show that these practices are not being followed. At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 12, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 12, Ex. 3). Troublingly, some facilities seem to have shut off detainee access
15

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to news outlets, thereby preventing the detention facility’s population from informing themselves on best practices to prevent transmission. (Doc. 12, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual.13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.

13

People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-

groups/high-risk-complications.html (“Older people and people of all ages with severe

underlying health conditions—like heart disease, lung disease and diabetes, for example—seem

to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-

conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and

“diabetes” are conditions that trigger higher risk of severe illness from COVID-19).

16

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Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial
17

Case 1:20-cv-00480-JEJ Document 47 Filed 03/31/20 Page 18 of 25
detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelterin-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v.
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Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court’s] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services. . .certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due
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process rights. (Doc. 12 at 27). We find that Petitioners are likely to succeed on the merits of their claim.14
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
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constitute a punishment to Petitioners. Despite the Respondents’ protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the conditions are rationally related to a legitimate government objective. Hubbard 538 F.3d at 232. Here, they are not.
The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.
Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.
The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE.
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We note that ICE has a plethora of means other than physical detention at their
disposal by which they may monitor civil detainees and ensure that they are present
at removal proceedings, including remote monitoring and routine check-ins.
Physical detention itself will place a burden on community healthcare systems and
will needlessly endanger Petitioners, prison employees, and the greater community.
We cannot see the rational basis of such a risk.15
We therefore find that Petitioners are likely to succeed on the merits of their
due process claim that their conditions of confinement expose them “to serious risks
associated with COVID-19.” (Doc. 12 at 35).
15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate’s current health problems” where they “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,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
22

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iv. Balancing of the Equities and Public Interest The equities at issue and public interest weigh heavily in Petitioners’ favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that 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. Finally, the public interest favors Petitioners’ release. As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and
23

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the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, 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. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately
24

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release the Petitioners today on their own recognizance without fail. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m. 4. No later than noon on April 7, 2020, the Respondents shall SHOW
CAUSE why the TRO should not be converted into a preliminary injunction. 5. The Petitioners may file a response before the opening of business on April 10, 2020.
s/ John E. Jones III John E. Jones III United States District Judge
25

 
 Case 1:20-cv-00480-JEJ Document 54 Filed 04/07/20 Page 1 of 51

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,

Case No. 1:20-cv-00480

Plaintiffs, v.

Hon. John E. Jones III

CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents.

RESPONDENTS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE, ISSUED MARCH 31, 2020 AND OPPOSITION
TO THE COURT’S TEMPORARY RESTRAINING ORDER

DAVID J. FREED United States Attorney
JOSEPH J. TERZ Civil Chief

s/Joanne M. Sanderson JOANNE M. SANDERSON Assistant U.S. Attorney PA 315327 228 Walnut Street Harrisburg, PA 17101 Joanne.Sanderson@usdoj.gov Phone: (717) 221-4482 Fax: (717) 221-4493

NAVIN JANI Assistant U.S. Attorney

DAVID J. BYERLY Trial Attorney U.S. Dept. of Justice, Civil Division Office of Immigration Litigation District Court Section

Case 1:20-cv-00480-JEJ Document 54 Filed 04/07/20 Page 2 of 51
TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 UPDATED FACTUAL BACKGROUND ................................................................5 LEGAL STANDARD..............................................................................................14 ARGUMENT ...........................................................................................................16
I. Petitioners are entitled to seek a change to the conditions of their confinement via a civil rights action, not release via a habeas petition.................................16 A. Petitioners are challenging the conditions of their confinement..............16 B. A civil rights action is the appropriate vehicle for bringing a conditions of confinement claim................................................................................17
II. Petitioners were not Entitled to a Preliminary Injunction...........................21 A. Plaintiffs have not shown a likelihood of success on the merits. ............21 1. Due Process Standards .........................................................................21 2. Failure to Protect and Inadequate Treatment ......................................22 B. The Balance of Interests Does not Favor Release ...................................33 C. The Court failed to Engage in Any Measured Analysis ..........................34
III. Release is Improper Relief. ........................................................................36 IV. Even if this Court Holds that Criminal Aliens have Greater Constitutional
Rights to Release than Pre-trial Citizens, the TRO Cannot Stand in its Current Form .................................................................................................40 CONCLUSION ........................................................................................................42
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Case 1:20-cv-00480-JEJ Document 54 Filed 04/07/20 Page 3 of 51
TABLE OF AUTHORITIES
FEDERAL STATUTES 8 U.S.C. § 1226 .............................................................................. 4, 5, 6, 7, 8, 9, 10 8 U.S.C. § 1231 .............................................................................. 10, 11, 12, 13, 14 18 U.S.C. § 3142 .................................................................................................... 30
CASES
Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000) .............................................................................. 15
Ali v. Gibson, 631 F.2d 1126 (3d Cir. 1980) ...................................................................... 18-19
Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997) .............................................................................. 14
Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................................... 27
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) ........................................................................ 33
Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) ........................................................... 22
City of Philadelphia v. Attorney Gen. of United States, 916 F.3d 276 (3d Cir. 2019) .............................................................................. 40
Communist Party of Ind. v. Whitcomb, 409 U.S. 1235, 93 S. Ct. 16, 34 L. Ed. 2d 40 (1972) ........................................ 16
Davis v. Pa. Dep't of Corr., No. CIV.A. 15-587, 2015 WL 5918909 (W.D. Pa. Oct. 7, 2015) ...................................................... 38
Dawson v. Asher, No. C20-0409JLR-MAT, 2020 U.S. Dist. LEXIS 47891 (W.D. Wash. Mar. 19, 2020) ........................... 29
Demore v. Kim, 538 U.S. 210 (2003) .................................................................................... 33, 34
Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189 (1989) .................................................................................... 27, 39
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Case 1:20-cv-00480-JEJ Document 54 Filed 04/07/20 Page 4 of 51
Doe v. Pa. Bd. of Probation & Parole, 513 F.3d 95 (3d Cir. 2008) ................................................................................ 19
Due Process Clause.” Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005) .............................................................................. 22
Farmer v. Brennan, 511 U.S. 825 (1994) .............................................................................. 21, 24, 27
Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. 2018) ............................................................... 23, 25-26
Hayes v. N. State Law Enf’t Officers Ass’n, 10 F.3d 207 (4th Cir. 1993) ............................................................................... 40
Helling v. McKinney, 509 U.S. 25 (1993) ............................................................................................ 28
Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614 (3d Cir. 1969) .............................................................................. 15
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ........................................................................... 38
Hutcherson v. Riley, 468 F.3d 750 (11th Cir. 2006) ........................................................................... 20
Inmates of Allegheny Cty. Jail v. Pierce 612 F.2d 754 (3d Cir. 1979) ........................................................................ 39-40
Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996) ............................................................................... 25
James v. Varno, 1:14-cv-01951, 2012 WL 895569 (M.D. Pa. Mar. 7, 2017) ............................... 3
Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999) ................................................................................ 17
Johnson v. Warden Canaan USP, 699 F. App'x 125 (3d Cir. 2017) ....................................................................... 20
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ...................................................................................... 27
iii

Case 1:20-cv-00480-JEJ Document 54 Filed 04/07/20 Page 5 of 51
Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993) ............................................................................ 22, 23
Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002) .................................................................. 17-18, 18
Leslie v. Atty. General of U.S., 363 Fed. Appx. 955 (3d Cir. 2010) ............................................................. 19-20
Millhouse v. Samuals, No. 1:15-CV-1644, 2016 WL 3436432 (M.D. Pa. Apr. 29, 2016) ............................................. 15-16
Millhouse v. Samuals, No. 1:15-CV-1644, 2016 WL 3457173 (M.D. Pa. June 20, 2016) ................................................... 16
Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) .............................................................................. 25
Moore v. Luffey, 767 F. App'x 335 (3d Cir. 2019) ....................................................................... 24
Muhammad v. Close, 540 U.S. 749 (2004) .......................................................................................... 18
Munaf v. Geren, 553 U.S. 674–90 (2008) .................................................................................... 14
Mutschler v. Commonwealth, No. 3:12-CV-0004, 2012 U.S. Dist. LEXIS 78838 (M.D. Pa. June 6, 2012) . 3738
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) .............................................................................. 20
Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974) ........................................................................... 39
Nken v. Holder, 556 U.S. 418 (2009) .......................................................................................... 33
Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012) ......................................................................... 20
Pearson v. Prison Health Serv., 850 F.3d 526 (3d Cir. 2017) ........................................................................ 24, 25
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Preiser v. Rodriguez, 411 U.S. 475 (1973) .............................................................................. 17, 18, 37
Quero v. Hufford, No. 3:11-cv-00238, 2011 WL 2414327 (M.D. Pa. May 18, 2011) ..................... 3
Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997) .............................................................................. 21
Rhodes v. Chapman, 452 U.S. 337 (1981) .......................................................................................... 18
Robinson v. Sherrod, 631 F.3d 839 (7th Cir. 2011) ............................................................................. 20
Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 U.S. Dist. LEXIS 53474 (S.D. Tex. Mar. 27, 2020) .................... 27-28, 29
Sovereign Water v. Messineo, 572 F. Supp. 983 (E.D. Pa. 1983) ..................................................................... 15
Stanko v. Obama, 393 Fed. Appx. 849 (3d Cir.2010) .................................................................... 19
Thomas v. Tice, 948 F.3d 133 (3d Cir. 2020) .............................................................................. 21
Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990) .............................................................................. 37
Trinity Indus. v. Chi. Bridge & Iron Co., 735 F.3d 131 (3d Cir. 2013) .............................................................................. 16
United States v. Bastianelli, No. 17-305, 2020 U.S. Dist. LEXIS 53441 (W.D. Pa. Mar. 27, 2020) ............ 32
United States v. Bell, No. 17-cr-20183-1, 2020 U.S. Dist. LEXIS 58850 (E.D. Mich. Apr. 3, 2020) 35
United States v. Boatwright, No. 2:19-cr-00301-GMN-DJA, 2020 U.S. Dist. LEXIS 58538 (D. Nev. Apr. 2, 2020) .................................................................................................................. 35
United States v. City of New York, 717 F.3d 72 (2d Cir. 2013) .......................................................................... 40-41
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United States v. Clark, No. 19-40068-01-HLT, 2020 U.S. Dist. LEXIS 51390 (D. Kan. Mar. 25, 2020) ............................................................................................................................ 36
United States v. Doe, 810 F.3d 132 (3d Cir. 2015) .............................................................................. 18
United States v. Green, No. 19-85, 2020 U.S. Dist. LEXIS 53440 (W.D. Pa. Mar. 27, 2020) .............. 32
United States v. Jones, , No. 2:19-CR-00249-DWA, 2020 U.S. Dist. LEXIS 54267 (W.D. Pa. Mar. 29, 2020) .................................................................................................................. 31
United States v. Lunnie, No. 4:19-cr-00180 KGB, 2020 U.S. Dist. LEXIS 57764 (E.D. Ark. Apr. 2, 2020) .................................................................................................................. 36
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .......................................................................................... 33
United States v. Mendoza, No. 20-mj-00011, 2020 U.S. Dist. LEXIS 58880 (M.D. Pa. Apr. 3, 2020) ..... 30
United States v. Moran, No. SAG-19-0585, 2020 U.S. Dist. LEXIS 58574 (D. Md. Apr. 3, 2020) ....... 30
United States v. Penney, No. 2:19-cr-8-NR, 2020 U.S. Dist. LEXIS 55278 (W.D. Pa. Mar. 18, 2020) .. 31
United States v. Pritchett, No. 19-280, 2020 U.S. Dist. LEXIS 57862 (W.D. Pa. Apr. 2, 2020) ............... 31
United States v. Simpson, No. 19-197, 2020 U.S. Dist. LEXIS 54006 (W.D. Pa. Mar. 27, 2020) ............ 31
United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976) ............................................................................ 16
United States v. Thomas, No. 19-176, 2020 U.S. Dist. LEXIS 55680 (W.D. Pa. Mar. 31, 2020) ............ 32
Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) .......................................................................................... 14
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Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775 (2d. Cir. 1994) ............................................................................... 40
Wilkinson v. Dotson, 544 U.S. 74 (2005) ............................................................................................ 19
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, (2008) ............................................................................................. 14
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) .............................................................................. 19
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INTRODUCTION Petitioners are thirteen aliens previously housed as immigration detainees in the Middle District of Pennsylvania at either York, Pike, or Clinton County. Petitioners allege that their many pre-existing medical conditions render them at increased risk for serious illness or death if they contract COVID-19. On March 24, 2020, Petitioners initiated this action with the filing of a “Petition for Writ of Habeas Corpus / Complaint” followed, on March 25, 2020, by a Motion for Temporary Restraining Order and supporting brief. Doc. 1 (Compl./Pet.); Doc. 7 (Mot.); Doc. 12 (Br. In Support). Petitioners claimed a constitutional violation necessitating their immediate release from custody because they suffer from medical conditions that make them more susceptible to COVID-19 and they were exposed to a “heightened risk” of contracting the virus if they were to remain in detention. Id. On March 25, 2020, this Court ordered Respondents to file a response to the Motion for Temporary Restraining Order “before the opening of business” March 30, 2020. Doc. 14 (Order.) Between March 25, 2020, and March 29, 2020, Petitioners filed two Notices of Supplemental Authority and a “factual update” containing numerous declarations. (Docs. 27, 33, 34.) Also, the Amici Curiae Public Health and Human Rights Experts requested, and were granted, the ability to file a brief. (Doc. 29, 36.) On March 29, 2020, Respondents filed a combined opposition to the restraining order and response to the habeas petition. Doc. 35 (Br. In Opp’n.) On
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March 30, 2020, Petitioners filed a Reply Brief. Doc 46 (Reply Br.) Less than 24 hours later, and without a hearing, this Court granted Petitioners’ request for a temporary restraining order and directed the immediate release of ten criminal aliens without any individualized assessment into their level of danger or flight risk and without weighing any potential impact on healthcare, housing, or the general health and safety of the communities into which they were released. Doc. 47 (Order.) Further, the Court ordered Respondents to show cause before noon April 7, 2020, why the temporary restraining order should not be converted into a preliminary injunction. Id.
Respondents hereby oppose Petitioners’ Motion for Permanent Injunction. Without authority, Petitioners’ sought, and were granted, immediate release from detention due to the worldwide presence of COVID-19. As this Court recently noted in its decision granting the Temporary Restraining Order, COVID-19 is a viral global pandemic that has temporarily changed the way people interact, work, and go to school. Doc. 47 (Order). It cannot be disputed that federal public health officials have opined that a way to stop the spread of COVID-19 is to practice social distancing. See id. at 8. The Court also noted that Pennsylvania has issued stay at home orders and has emphasized this notion of social distancing. See id.
The Government is sympathetic to the fear that this unprecedented pandemic has instilled in Petitioners. The rules of law, however, have not broken down. We as
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a nation still follow the United States Constitution, federal law, and precedent; and must balance individual concerns with the threats that aliens like Petitioners pose to society as a whole and ICE’s obligation to detain aliens until they are removed.
Accordingly, this opposition brief asks the Court to review the following: First, Petitioners’ temporary relief is pendent on the scope of the pandemic. They have not provided this Court with any authority how it could order an immediate temporary release under 28 U.S.C. § 2241. Section 2241 involves a challenge that “ultimately attacks the ‘core of habeas’—the validity of the continued conviction or the fact or length of the sentence.” Quero v. Hufford, No. 3:11-cv-00238, 2011 WL 2414327, at *3 (M.D. Pa. May 18, 2011), R & R, adopted by 2011 WL 2357509 (M.D. Pa. June 10, 2011) (quoting Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002)). “‘Conversely, when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction” a civil rights action is appropriate. Id.
Second, temporary or preliminary relief has to relate to the initial complaint filed in the matter so that the Court can decide the merits of the claim, based on the Complaint, to determine if permanent relief should be granted. James v. Varno, 1:14cv-01951, 2012 WL 895569, at *3 (M.D. Pa. Mar. 7, 2017) (citing Ball v. Famiglio, 396 F. App’x 836, 837 (3d Cir. 2010). Petitioners’ request for injunctive relief is only tangential to their initial petition –they should have filed a complaint asserting
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a constitutional claim. Third, to the extent this Court continues to exercise jurisdiction over this
matter, other than stating release into COVID-19 ravaged communities is the only way to protect them from COVID-19, it has not been demonstrated that the Clinton or Pike County Correctional Facilities or York County Prison pose a risk to their safety or that ICE has violated their constitutional rights. Rather, the evidence demonstrates that the Government has taken steps to protect the Petitioners’ safety and the safety of other detainees from prevention, uncontrollable spread, diagnoses, and treatment of COVID-19.
Fourth, this Court must then balance the equities and public interest of allowing detainees such as Petitioners, who are either subject to mandatory detention, or not appropriate for release due to their criminal or immigration backgrounds, to continue inhabiting communities without any means to safeguard the communities they have been released into. Re-detaining the Petitioners at the expiration of the temporary relief previously granted fulfills the purpose of facilitating deportation and protecting against flight or dangerousness. ICE was lawfully detaining Petitioners for removal proceedings because their criminal record placed them within the ambit of 8 U.S.C. § 1226(c) or because their previous lawless actions while in the community had rendered them unsuitable for release back into the communities within the United States from which they came.
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Finally and alternatively, to the extent this Court is inclined to grant permanent relief, the Government requests that the order be limited to April 30, 2020, the end of the thirty-day period that the CDC has asked for social distancing or until such time as Petitioners can be removed from the United States –whichever occurs first.1 In addition, any potential order granting this motion, should remand the matter to ICE to set conditions of release, those conditions would include: a) the detainee be ordered to comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing, and b) until returned to ICE detention, the detainee be placed on home detention, and requirement that Petitioners’ counsel file a status notice every seven days on the whereabouts of each released petitioner.
UPDATED FACTUAL BACKGROUND A. Inmate Population. The York County Prison has the capacity to house 2,245 inmates and has historically often operated near capacity. See Declaration of Joseph Dunn (Ex. 1) ¶ 5. As of the morning of April 3, 2020, however, there are only 1,376 combined male and female inmates and detainees housed at the facility. Id. The Clinton County
1 It is obviously not certain that April 30, 2020, is the last day the CDC will recommend social distancing. https://www.coronavirus.gov. This Court’s potential order in this case, however, should be limited in time in the event CDC guidance changes.
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Correctional Facility has the capacity to house 298 inmates and has historically often operated near capacity. Id. ¶ 6. As of the morning of April 3, 2020, however, there are only 155 combined inmates and detainees housed at the facility. Id. The Pike County Correctional Facility has the capacity to house 375 detainees and has historically often operated near capacity. Id. ¶ 7. As of the morning of April 3, 2020, however, there are only 250 combined inmates and detainees housed at the facility. Id.
B. Individual Criminal and Immigration History. Bharatkumar G. Thakker is a native and citizen of India who was admitted to the United States as an NP1 – Lawful Permanent Resident (child of a person in the United States on an employment visa) on March 13, 1973. Id. ¶ 9. Thakker filed an application for naturalization that was denied due to poor moral character. Id. To wit, Thakker has nine convictions for theft related offenses: June 17, 2003, November 4, 2004, January 22, 2009, August 23, 2007, and September 9, 2008 convictions for retail theft; a January 15, 2010 conviction for shoplifting; a September 27, 2011 conviction for possessing instruments of crime; and a May 6, 2014 conviction for retail theft. Id. On June 7, 2017, Thakker was arrested for the ninth time for a theft related offense. Id. On March 4, 2020, Thakker received a bond hearing and the IJ found that he remains a significant risk and danger to the community and property and denied bond. Id. In addition, ICE reviewed Thakker
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for discretionary release and determined that although he is on the chronic care list for, among other issues, GERD and situational high blood pressure, continued detention was determined given his criminality. Id.
Adebodun Adebomi Idowu is a native and citizen of Nigeria. Id. ¶ 10. Idowu adjusted status to conditional lawful permanent resident; however, USCIS denied his Petition to Remove Conditions on Residence because he failed to establish his marriage was entered into in good faith. Id. He has been without legal status for almost three years. Id. He was subsequently convicted for Conspiracy to Launder Monetary Instruments and sentenced to 16 months imprisonment. Id. The monetary loss exceeded $10,000. Id. After Idowu entered withholding only proceedings, the immigration judge denied all forms of relief finding that Idowu’s criminal coconspirators were members of Boko Haram, a designated terrorist organization. Id. On appeal the Board of Immigration Appeals affirmed that decision. Id. In December 2019, Idowu was reviewed for bond. Id. The immigration judge denied him as a danger to the community because Idowu’s criminal contact involved a high level of fraud and deception. Id. Idowu’s victims were individuals who suffered significant harm when their money was taken from them, and while the offense was not violent, it was still dangerous to the community and was recent. Id. The immigration judge also found that because Idowu had very little
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avenues for relief from removal, if she had reached the issue of flight risk, Idowu would have been found to be one.2 Id.
Courtney Stubbs is a native and citizen of Jamaica. On March 27, 2003, he was convicted of Conspiracy to Possess with Intent to Distribute Marijuana and sentenced to 46 months imprisonment. Id. ¶ 11. The Third Circuit Court of Appeals dismissed his Petition for Review and denied his Motion to Stay Removal on December 20, 2019. Id. He was denied bond on January 13, 2020 because his removal was imminent. Id.
Rigoberto Gomez-Hernandez is a native and citizen of Mexico. Id. ¶ 12. He was considered for bond on October 21, 2019, but denied as a danger to the community due to a 2011 DUI, a 2013 conviction for Disorderly Conduct, and a 2019 conviction for Simple Assault where he was arrested for domestic violence when he assaulted his wife in front of their children. Id. In addition, ICE reviewed Gomez-Hernandez for discretionary and determined that although he is on the chronic care list for, among other issues, GERD and constipation, continued detention was determined given his criminality. Id.
2 For this reason, the “temporary restraining order” is likely “temporary” in name only. Respondents have serious reason to doubt that beneficiaries of the Court’s order, such as Mr. Idowu, will return to custody for removal, or that Respondents will be able to locate Mr. Idowu now that the Court has ordered his unconditional release.
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Rodolfo Augustin Juarez-Juarez is a native and citizen of El Salvador. Id. ¶ 13. On October 28, 2018, he was released on $5,000 bond; however, while on bond he was placed on ARD for DUI and attempted to purchase a firearm, indicating on the application that he was a United States Citizen. Id. Therefore, his bond was revoked. Id.
Henry Pratt has a final order of removal and the only impediment to his removal was that he will not cooperate in obtaining a travel document for his removal to Liberia and, had he not been released, would have been placed in Failure to Comply status. Id. ¶ 14. In addition, he was previously denied bond on several occasions as the immigration judge found him to be a danger to the community and a flight risk. Id. Specifically, he was arrested in 2000, 2002, 2003, 2007, 2010, 2011, 2014, and 2015 for various types of offenses. Id. He has five convictions stemming from these arrests. Id. He has been found guilty of Criminal Attempt-Theft by Deception-False Impression and sentenced to 11 ½ to 23 months' confinement and 4 years' probation; Fraud-False Insurance Claim and sentenced to 6 to 12 months' confinement and four years' probation; Access Device Fraud and was sentenced to 2 years' probation; Forgery-Alter Writing and was sentenced to 2 years' probation; and Unauthorized Use of Motor Vehicles and sentenced to 2 years' probation. Id.
Jean H.C. Augustin is a native and citizen of Haiti. Id. ¶ 15. He had his appeal challenging his removal order dismissed by the Board of Immigration Appeals on
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March 17, 2020. Id. Thus, he is subject to the 90-day removal period set forth in 8 U.S.C. § 1231(a)(1) and prior to release, ICE had only 13 days to attempt to effectuate his removal from the United States. Id. On April 25, 2017, he was convicted for heroin trafficking for selling a “bundle” of heroin that consisted of thirteen bags containing heroin and one bag containing a combination of cocaine and fentanyl as well as unlicensed possession of firearms. Id. Between 2017 through 2019, confirmed overdoses claimed at least 13,631 lives in Pennsylvania alone.3
Mayowa Abayomi Oyerdiran is a native and citizen of Nigeria. Id. ¶ 16. On September 7, 2013, he was refused entry into the United States for fraud. Id. He has filed 14 nonimmigrant visa applications (B-1/2 or F1 applications to attend flight school) with different United States Embassies that were all previously denied. Id. He admitted to misrepresenting material facts on applications for entry into the United States. Id. When he arrived in the United States on November 7, 2019, he presented a French Passport with an alias before being positively identified via his FBI number. Id.
Catalino Domingo Gomez-Lopez is a native and citizen of Guatemala. Id. ¶ 17. On February 20, 2020, he was denied bond as a danger to the community given his past convictions and law enforcement contacts. Id. He had attempted entry into
3 Opioid Data Dashboard, THE COMMONWEALTH OF PENNSYLVANIA (last visited April 6, 2020), https://data.pa.gov/stories/s/9q45-nckt/. This number is likely much higher, as a number of counties in this district failed to report data.
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the United States at least three times using aliases before finally entering illegally without inspection. Id. He also has two DUI convictions and convictions or arrests for Leaving the Scene of a Property Collision, multiple traffics offenses, and nine misdemeanor convictions in the state of Delaware. Id.
Dexter Anthony Hillocks is a native and citizen of Trinidad and Tobago. Id. ¶ 18. He has a 2015 conviction for criminal use of a communication facility involving heroin trafficking and 2002 conviction for possession of marijuana. Id. He was granted bond ($18,000) but has failed to post that bond. Id. ICE reviewed Hillocks for discretionary release and determined that although he is on the chronic care list for, among other issues, anemia and hypothyroid, continued detention was determined given his criminality. Id. However, had he posted the bond previously issued, he would have been released. Id.4
C. Facility Conditions. As of the morning of April 3, 2020, the Philadelphia Field Office (ERO) has the following information: at the Clinton County Prison there have been zero
4 Meiling Lin is a native and citizen of China. Id. ¶ 19. ICE reviewed Lin for discretionary release and released her from the York County Prison on March 30, 2020. Id. Agus Prajoga is a native and citizen of Indonesia. Id. ¶ 20. ICE reviewed Prajoga for discretionary release and released him from Pike County Correctional Facility on March 27, 2020. Id. Fnu Mansyur is a native and citizen of Indonesia. Id. ¶ 21. ICE reviewed Mansyur for discretionary release and released him from Pike County Correctional Facility on March 27, 2020. Id.
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confirmed cases of COVID-19. Id. ¶ 22. At the York County Prison one ICE detainee has tested positive for COVID-19. Id. She is currently in quarantine under medical observation. Id. At the Pike County Prison one ICE detainee and one county inmate have tested positive for COVID-19. Id. Both are in quarantine under medical observation. Id. Five correctional officers have tested positive for COVID19. Id. They are under self-quarantine. Id.
As of the morning of April 3, 2020, the Philadelphia Field Office (ERO) has the following information regarding recent procedural changes in response to COVID-19 since Captain Jennifer Moon’s March 27, 2020 declaration: in response to COVID-19, the Clinton County Prison now requires that transport and intake officers be properly fitted for and wear N95 masks. Id. ¶ 23. Employees in intake and accompanying inmates outside the facility are required to wear goggles or safety glasses. Id. Upon removal of their masks, employees are required to immediately wash their hands. Id.
In response to COVID-19, the York County Prison now requires all staff working within CERT activation, medical transport, mail processing; admissions and intake, temperature monitors, cohorted housing units, working directly with detainees on isolation status, and all medical staff be fitted for and wear an N95 mask. Id. All kitchen staff are now assigned surgical masks. Id. Detainees who work in the kitchen are required to wear surgical masks. Id. Detainees on isolation
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status are required to wear an N-95 mask when they leave a cohorted housing unit. Id. Additionally, any detainees being transported to a hospital or outside medical appointment or as directed by PrimeCare medical staff, will be required to wear a surgical mask. Id.
In response to COVID-19, the Pike County Prison has instituted a modified lockdown schedule. Id. Movement throughout the facility is restricted. Id. Detainees ability to leave their cells is staggered in order to promote social distancing. Id. All detainees must maintain social distancing when not housed within the same cell. Id. Meals are now served to detainees within their cells. Id. All staff are now required to wear masks within the facility. Id. Daily temperature checks and screening for influenza like illness (ILI) symptoms have been implemented for all detainees. Id. If any detainee displays ILI symptoms, they along with any cell mates, are placed in quarantine. Id. Staff has increased the frequency of cleaning and disinfecting, including often used touch surfaces. Id.
Pertaining to detainee access to news related content or programming, the Philadelphia Field Office (ERO) has the following information: at the Clinton County Prison all detainees have access to various media outlets, including news outlets, via television. Id. ¶ 24. At the York County Prison all detainees have access to various media outlets, including news outlets, via television. Id. At the Pike County Prison all detainees have access to various media outlets, including news
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outlets, via television. Id. LEGAL STANDARD
Preliminary injunctions are an extraordinary remedy and are never awarded as of right. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, (2008); Munaf v. Geren, 553 U.S. 674, 689–90 (2008). Their purpose is to preserve the status quo and relative positions of the parties until the case is decided on the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997).
In order to obtain the injunctive relief he seeks, the moving party must demonstrate A(1) that he is likely to suffer irreparable injury in the absence of injunctive relief; [and] (2) that he is likely to prevail on the merits.@ Anderson, 125 F.3d at 159 (citing Schulz v. U.A. Boxing Ass=n, 105 F.3d 127, 131 n.6 (3d Cir. 1997)); Tenafly Eruv Ass=n, Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002) (same). If he succeeds in demonstrating the first two requirements, the court should then consider, when relevant, A(3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.@ Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (quoting Del. River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (additional citation omitted)).
The Third Circuit has Arepeatedly insisted that the use of judicial power to
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arrange relationships prior to a full determination on the merits is a weighty matter, and the preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm.@ Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (citing Campbell Soup Co. v. ConAgra Inc., 977 F.2d 86, 91 (3d Cir. 1992)). AThe dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat.@ Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969) (additional citations omitted). The Supreme Court has instructed that Athe tool of the preliminary injunction should be reserved for >extraordinary situations.=@ Id. (citing Sampson v. Murray, 415 U.S. 61, 88 (1974)). The Third Circuit has also Ainsisted that the risk of irreparable harm must not be speculative.@ Adams v. Freedom Forge Corp., 204 F.3d at 488 (citing Acierno v. New Castle Cty, 40 F.3d 645, 653 (3d Cir. 1994)). AGenerally preliminary injunctions are granted to maintain the status quo.@ Sovereign Water v. Messineo, 572 F. Supp. 983 (E.D. Pa. 1983) (citation omitted). Further, where the movant’s “request for immediate relief in his motion for preliminary injunction necessarily seeks resolution of one of the ultimate issues presented... [the movant] cannot demonstrate that [s]he will suffer irreparable harm if he is not granted a preliminary injunction, because the ultimate issue presented will be decided either by this Court, upon consideration of [Respondent’s Response to the Petition, or at an evidentiary hearing].” Millhouse v.
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Samuals, No. 1:15-CV-1644, 2016 WL 3436432, at *4 (M.D. Pa. Apr. 29, 2016), report and recommendation adopted sub nom. Millhouse v. Samuals, No. 1:15-CV1644, 2016 WL 3457173 (M.D. Pa. June 20, 2016) (internal citations omitted).
Where, as here, the requested injunction is “mandatory” in nature, and the grant of injunctive relief would alter the status quo, additional scrutiny is applied. Communist Party of Ind. v. Whitcomb, 409 U.S. 1235, 1235, 93 S. Ct. 16, 34 L. Ed. 2d 40 (1972) (noting that a mandatory injunction is an “extraordinary remedy [to] be employed only in the most unusual case.”); United States v. Spectro Foods Corp., 544 F.2d 1175, 1181 (3d Cir. 1976) (“The power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.”). “[W]hen mandatory injunctive relief is sought, ‘the burden on the moving party is particularly heavy.’” Trinity Indus. v. Chi. Bridge & Iron Co., 735 F.3d 131, 139 (3d Cir. 2013) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980)). The moving party’s “right to relief must be indisputably clear.” Communist Party, 409 U.S. at 1235.
ARGUMENT I. Petitioners are entitled to seek a change to the conditions of their
confinement via a civil rights action, not release via a habeas petition. A. Petitioners are challenging the conditions of their confinement. Petitioners are in no way challenging the authority of the government per se to detain them, i.e. the fact of their confinement. Rather, they are challenging the conditions under which they are being confined given the context of the current
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pandemic. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (“’Conditions of confinement’ is not a term of art; it has a plain meaning. It quite simply encompasses all conditions under which a prisoner is confined for his term of imprisonment.”). They admit as much throughout their filings. See Doc. 46 (Pet’rs’ Reply Br) p. 11 (alleging that their “confinement during this pandemic in less than-hygienic conditions that preclude social distancing” violates their rights); see also Compl. (Doc. 1) p. 4 (complaining that “[c]urrent conditions and procedures” in place at ICE facilities pose a health risk); Id. at 19 (“The conditions in Pennsylvania’s immigrant detention facilities contravene all medical and public health directives for risk mitigation. People live in close quarters and cannot achieve the ‘social distancing’ needed to effectively prevent the spread of COVID-19.”); Doc. 12 (Br. In Support) at 19 (“The conditions of immigration detention facilities pose a heightened public health risk for the spread of COVID-19 . . . .“). That is also why their filings are full of facts concerning their health and living conditions rather than facts pertaining to how and why they came to be detained.
B. A civil rights action is the appropriate vehicle for bringing a conditions of confinement claim.
A habeas petition is appropriate when individuals attack “the validity of the fact or length of their confinement.” Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); see also Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (summarizing Supreme Court jurisprudence as prescribing habeas relief where the challenge is to “the
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validity of the continued conviction or the fact or length of the sentence”). On the other hand, where individuals, like Petitioners, are challenging the conditions of their confinement, a civil rights action is the appropriate vehicle. See Preiser, 411 U.S. 490 (“[A] 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life.”); Leamer, 288 F.3d 543 (“[T]he challenge by Leamer is aimed at a condition of his confinement, and is a challenge properly brought under § 1983.”); see also Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (reviewing allegations of overcrowding in a state prison in the context of a civil rights action and finding no constitutional violation).
That is not to say that either the Supreme Court or the Third Circuit has absolutely ruled out the possibility of challenging conditions of confinement via a habeas petition. See Preiser, 411 U.S. 499 (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”); United States v. Doe, 810 F.3d 132, 149 (3d Cir. 2015) (“A habeas court may lack jurisdiction over a claim that does not challenge the fact, duration, or conditions of confinement.”). But the Supreme Court has not yet allowed it. See Muhammad v. Close, 540 U.S. 749, 751 n. 1 (2004) (observing that the Court has never followed the speculation in Preiser described above). And the Third Circuit has done so only under exceptional factual and legal circumstances. See Ali v. Gibson, 631 F.2d 1126,
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1128 (3d Cir. 1980) (considering prisoner’s conditions of confinement claim in context of Virgin Islands habeas law because § 2241 was not applicable); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-243 (3d Cir. 2005) (finding prisoner’s challenge to BOP regulation curtailing the portion of his sentence that could be spent in community confinement to be cognizable under habeas as a challenge to the execution of his sentence). The traditional division of labor remains good law. See Doe v. Pa. Bd. of Probation & Parole, 513 F.3d 95, 100 n.3 (3d Cir. 2008) (internal citations omitted) (“[T]he difference between a civil rights action and a collateral attack is easy to describe. Challenges to conditions of confinement fall under § 1983. Attacks on the fact or duration of the confinement come under [habeas].”); see also Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring) (noting that conditions of confinement claims in habeas would “utterly sever the writ from its common-law roots”);
Accordingly, district courts in this circuit routinely dismiss habeas petitions challenging conditions of confinement for lack of jurisdiction. See, e.g., Stanko v. Obama, 393 Fed. Appx. 849, 851 (3d Cir.2010) (holding that district court properly dismissed prisoner's claims of cruel and unusual punishment and constitutional violations resulting from the seizure of his papers because those claims “clearly fall outside the realm of challenges brought in habeas”); Leslie v. Atty. General of U.S., 363 Fed. Appx. 955, 958 (3d Cir. 2010) (“To the extent that Leslie attempts to
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challenge the conditions of his confinement, we agree with the District Court that this habeas corpus petition was not the proper vehicle to raise his claims.”); Johnson v. Warden Canaan USP, 699 F. App'x 125, 126 (3d Cir. 2017) (“The Court correctly reasoned that Johnson was challenging the conditions of his confinement rather than the execution of his sentence, and thus that habeas corpus was not an available remedy.”).
This practice is in line with the law in other circuits. See Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011) (“[W]e'll adhere to our long-standing view that habeas corpus is not a permissible route for challenging prison conditions.”); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) ("[W]e now adopt the correlative rule that a § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas corpus.”); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (“[A] prisoner who challenges the conditions of his confinement must do so through a civil rights action.”); Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“When an inmate challenges the ‘circumstances of his confinement’ but not the validity of his conviction and/or sentence, then the claim is properly raised in a civil rights action under § 1983.”).
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II. Petitioners were not Entitled to a Preliminary Injunction
A. Plaintiffs have not shown a likelihood of success on the merits. 1. Due Process Standards5
Both the Eighth Amendment and the Fifth Amendment apply to the conditions
of confinement. The rights guaranteed by the Eighth Amendment to convicted
prisoners subject to penal incarceration also apply under the Fifth Amendment to
non-penal incarceration or confinement, including pre-trial and civil detainees.
Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997). The difference between the
two is that the Eighth Amendment prevents “cruel and unusual punishment,”
5 Because the Eighth Amendment is inapplicable in this case beyond supplying the base substantive rights, Respondents will not belabor footnote 15. However, Respondents note that the Court cites Thomas v. Tice, 948 F.3d 133 (3d Cir. 2020), which explicitly held that unsanitariness alone was insufficient to establish an Eighth Amendment violation. Tice, 948 F.3d at 139 (“administrative confinement in a dry cell is unpleasant and often unsanitary, so long as the conditions of that confinement are not foul or inhuman, and are supported by some penological justification, they will not violate the Eighth Amendment.”).
Moreover, even if the Court had evidence to find that cohorting is “ineffective,” this is insufficient under the Fifth Amendment, much less under the Eighth Amendment, to find a constitutional violation. The Supreme Court in Farmer made clear that subjective intent is required: “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for ‘deliberate indifference’ under the Eighth Amendment.” Id. at 839-40; contra Doc. 47 at 24 (“… this deficiency is neither intentional nor malicious…”). The Court does not explain how the existence of a pandemic frees the Court from binding authority to reach a finding that alleged deficiencies that are “neither intentional nor malicious” violate the constitution.
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whereas “pre-trial detainees cannot be punished at all under the Due Process Clause.” Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).
As it relates to medical claims, the Third Circuit “has set forth the elements of a Due Process Clause violation based on the government's duty to provide pretrial detainees with appropriate medical care: Such a violation requires ‘acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.’” Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993) (quoting Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988)). When it comes to medical care and medical conditions, the “deliberate indifference” standard applies in both the due process and Eighth Amendment contexts. See Kost, 1 F.3d at 185; see also Castro v. County of Los Angeles, 833 F.3d 1060, 1068-71 (9th Cir. 2016) (en banc) (“[There is] a single ‘deliberate indifference’ test for plaintiffs who bring a constitutional claim—whether under the Eighth Amendment or the Fourteenth Amendment.”). Under that standard, “[a] plaintiff must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of the ‘the minimal civilized measure of life's necessities.’” Kost v. Kozakiewicz, 1 F.3d at 188 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
2. Failure to Protect and Inadequate Treatment To establish deliberate indifference as to preventive medicine and medical treatment in this Circuit, there are four essential elements: (1) the case must involve
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a “serious” medical condition; (2) government must have “notice of [the] condition”; (3) there must be an intentional or reckless act of omission after notice, and (4) a causal relationship between the omission and the resulting condition. Kost v. Kozakiewicz, 1 F.3d 176, 189 (3d Cir. 1993) (“A prison’s dispensing of vermin infested bedding, which causes that detainee's personal infestation, may establish a violation of a pretrial detainee's due process rights”); id. (“Heatstroke is considered a serious medical condition that requires treatment. The complaint alleged that jail and county officials were given notice of his condition and did nothing.”).6 These four basic elements apply to both medical treatment and precautionary health/safety measures. The Third Circuit has “found deliberate indifference in a variety of contexts[,]” including “where (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving
6 See also, Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). Based thereon, the elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.
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recommended treatment for serious medical needs.” Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017).
Because COVID-19 is a serious condition and the government is aware of COVID-19, the first two elements are established. However, the third and fourth elements are not.
Respondents, working in coordination with the detention facilities, have taken numerous measures to prevent and contain any potential outbreak. Ex. 1 (Dunn Decl.) ¶¶ 24-25. The fact that Respondents have taken proactive measures—such as cohorting and modified lockdowns, social distancing, increased sanitation measures—indicates that Respondents were not deliberately indifferent to the risk of infection. When preventive or medical treatment has been rendered, there is a presumption against deliberate indifference. Moore v. Luffey, 767 F. App'x 335, 341 (3d Cir. 2019); Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017) (“when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care.”). This presumption is not easily surmountable, as even malpractice does not rise to deliberate indifference - “deliberate indifference describes a state of mind more blameworthy than negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994).
At the very most, Petitioners and their declarations cite to a preference for release as the best preventive medicine practice. Respondents, on the other hand,
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have issued guidance and have worked to develop best practices for the health and safety of detainees while maintaining custody. Release, viewed as a preference for one form of preventive medicine over another, does not become a constitutional right merely because Petitioners believe release to be the better preventive medicine regimen. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (“a plaintiff’s showing of nothing more than ‘a difference of medical opinion’ as to the need to pursue one course of treatment over another was insufficient, as a matter of law, to establish deliberate indifference.”). As a detainee, Petitioners have no constitutional right to the course of preventive medicine of their choice, which in this case is release. Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 337 (3d Cir. 1987) (“…the Constitution does not require prison officials to adopt the best method of accommodation…”). As noted by the Third Circuit, “the deliberate indifference standard ‘affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients,’ we must ‘disavow any attempt to second-guess the propriety or adequacy of [their] particular course of treatment’ so long as it ‘remains a question of sound professional judgment.’” Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017) (quoting Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).
As to the fourth element, there must be causation between the act of “reckless disregard” and the serious condition. Gordon v. Cty. of Orange, 888 F.3d 1118,
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1125 (9th Cir. 2018) (“If the serious injury or illness were to occur regardless of Respondents’ reasonable efforts to prevent it, no due process violation has occurred. Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 U.S. Dist. LEXIS 53474, at *15 (S.D. Tex. Mar. 27, 2020) (“the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release”). Indeed, to find otherwise would be to impose strict liability and render the deliberate indifference standard utterly meaningless. Steading v. Thompson, 941 F.2d 498, 499 (7th Cir. 1991) (“neither negligence nor strict liability is the appropriate inquiry in prison-conditions cases.”). Where a pandemic, such as this one, poses a threat to everyone without discrimination, Petitioners do not gain a right of release by merely citing to the pandemic. See also Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) (“Many Americans live under conditions of exposure to various contaminants. The [Constitution] does not require prisons to provide prisoners with more salubrious air, healthier food, or cleaner water than are enjoyed by substantial numbers of free Americans.”).
In short, there is no precedent for the suggestion that if the government cannot guarantee a clean bill of health for those in custody, then it cannot maintain custody at all. Indeed, the very existence of a “deliberate indifference” standard demonstrates the Supreme Court’s understanding and acceptance of the fact that the
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detention setting carries a degree of inherent and legally permissible risk, even in non-penal confinement. The Supreme Court expressly held as much in Wolfish, stating that due process permits civil and pre-trial detainees to be exposed to “inherent incidents of confinement.” Bell v. Wolfish, 441 U.S. 520, 537 (1979). The Supreme Court has since reiterated this principle time and again. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (civil detainee may be subjected to use of force when it is objectively reasonable without violating due process); Farmer, 511 U.S. at 834 (“not… every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety.”); Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199 (1989) (“the Fourteenth Amendment's Due Process Clause requires the State to … ensure their reasonable safety…” (emphasis added, internal marks omitted)). Even if preventive measures should fail, the failure of preventive measures does not ipso facto mean that such measures were deliberately indifferent. Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 U.S. Dist. LEXIS 53474, at *11-12 (S.D. Tex. Mar. 27, 2020) (“… the record reflects that ICE has provided constant medical attention to Sacal, and has implemented preventative measures to reduce the risk of Sacal contracting COVID-19. Those measures may ultimately prove insufficient. But the implementation of those measures preclude a finding that ICE has refused
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to care for Sacal or otherwise exhibited wanton disregard for his serious medical needs.”).
Courts should avoid the temptation to rush to disregard longstanding, wellestablished legal principles. This Court’s order, which unconditionally released Boko Haram contacts, drug traffickers, drunk drivers, and fraudsters is unsupported by the cases upon which it relies. The Court cited Helling v. McKinney, 509 U.S. 25, 33 (1993) for standing purposes, but ignored the central facts of that case. In Helling, the Supreme Court found that “McKinney state[d] a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of [secondhand smoke] that pose an unreasonable risk of serious damage to his future health.” Helling, 509 U.S. at 35. Important to the Supreme Court’s holding in Helling were two critical facts: (1) the government created McKinney’s exposure to secondhand smoke by placing him with a chain-smoking cellmate, and (2) the government took no steps to reduce McKinney’s risk when it had the power to just give McKinney a different cellmate. Here, the government did not create COVID-19, nor has the government placed Petitioners with COVID-19 positive cellmates. In fact, the record demonstrates that Respondents have taken measures to ensure Petitioners’ well-being and have taken reasonable steps to prevent their exposure to COVID-19. Ex. 1 (Dunn Decl.) ¶¶ 2324. These critical facts make Helling distinguishable, if not inapplicable entirely.
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See, e.g., Sacal-Micha v. Longoria, 2020 U.S. Dist. LEXIS 53474 at *11; Dawson v. Asher, No. C20-0409JLR-MAT, 2020 U.S. Dist. LEXIS 47891, at *6 (W.D. Wash. Mar. 19, 2020). It is unlikely that the Supreme Court would have found a constitutional violation if McKinney’s exposure to secondhand smoke was no greater than anyone else’s and the government had installed air filters in the facility. The Court cites to no precedent that states that despite reasonable efforts to prevent disease, deliberate indifference may still be found where there is a chance that such efforts may be futile. As previously stated, this imposition of strict liability has never been recognized and has been repeatedly rejected. Moreover, it is alarming and disturbing that the Court determined that the declarations of convicted drug traffickers, domestic abusers, and fraudsters—all of whom had a personal interest in dishonest testimony—were entitled to a great degree of credibility and weight, while the declarations of United States employees were discarded.
The Court acknowledged, but ultimately dismissed as unimportant Respondents’ interests in maintaining custody to ensure that immigration law is enforced. As the Court acknowledged, those in Respondents’ custody are civil detainees, who are treated the same as pre-trial detainees under the Fifth Amendment.
Akin to the INA’s provisions which permit detention pending removal, the Bail Reform Act permits the courts to make custody determinations to ensure that
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pre-trial detainees attend their criminal proceedings. A “judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.” 18 U.S.C. § 3142(i).
Many courts, including courts in this district, have found that pre-trial detainees have not shown the lesser “compelling reason” showing under § 3142(i) by simply citing to COVID-19, much less the higher showing for a Fifth Amendment violation. “We [] recognize that public health officials have strenuously encouraged the public to practice ‘social distancing,’ to hand-wash and/or sanitize frequently, and to avoid close contact with others—all of which presents challenges in detention facilities. … However, a defendant should not be entitled to temporary release under § 3142(i) based solely on generalized COVID-19 fears and speculation.” United States v. Mendoza, No. 5:20-mj-00011, 2020 U.S. Dist. LEXIS 58880, at *7 (M.D. Pa. Apr. 3, 2020); United States v. Moran, No. SAG-19-0585, 2020 U.S. Dist. LEXIS 58574, at *4 (D. Md. Apr. 3, 2020) (“The outbreak of COVID-19 does not however relieve the Court of its responsibilities to ensure the presence of the Defendant at trial and more importantly, the safety of the community.”).
When looking to whether temporary release is appropriate or legally required under 18 U.S.C. § 3142(i), courts have been far more reluctant to release pre-trial
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detainees. In fact, the courts of this circuit have uniformly denied every single §
3142(i) petition based on COVID-19, even where there are heightened risk factors:
• “While Defendant indicates that he suffers from hypertension, sleep apnea and asthma, and it is true that individuals with respiratory issues are at higher risk for COVID-19, his present health conditions are not sufficient to establish a compelling reason for release given the danger to the community if he is released and the efforts being undertaken at the ACJ to combat the spread of the virus.” United States v. Jones, No. 2:19-CR-00249-DWA, 2020 U.S. Dist. LEXIS 54267, at *8 (W.D. Pa. Mar. 29, 2020).
• “While the Court is sympathetic to Simpson's medical concerns and claims regarding possible complications caused by the COVID-19 virus, such speculation concerning possible future conditions does not constitute a ‘compelling reason’ for temporary release.” United States v. Simpson, No. 19-197, 2020 U.S. Dist. LEXIS 54006, at *4 (W.D. Pa. Mar. 27, 2020).
• “Defendant invites me to speculate that COVID-19 is present or imminent in the ACJ and, therefore, that his asthma requires the extreme measure of temporary release to home confinement pending trial. I do not agree that such a release is warranted by the facts of this case, or the actual circumstances at the jail.” United States v. Pritchett, No. 19-280, 2020 U.S. Dist. LEXIS 57862, at *7 (W.D. Pa. Apr. 2, 2020).
• “While the Court is sympathetic to Defendants' claims regarding the complications caused by COVID-19, those concerns are not a sufficient basis for temporary release… the safety of the community would be placed in peril by release…. Mr. Penney has had several violations while on supervised release following his sentence from a prior conviction, including picking up ‘new criminal charges for drug trafficking and gun crimes.’” United States v. Penney, No. 2:19-cr-8-NR, 2020 U.S. Dist. LEXIS 55278, at *7 (W.D. Pa. Mar. 18, 2020).
• “Defendant contends that as an inmate at the Allegheny County Jail, he is at much graver risk of contracting COVID-19 than if released to home confinement and that he is particularly vulnerable because he has a documented history of seasonal bronchitis and acute ulcerative colitis….
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The Court recognizes the potential for Defendant's exposure to the COVID19 virus at the Allegheny County Jail. Unfortunately, that potential exists anywhere in the community… While the Court is sympathetic to Defendant's medical concerns and claims regarding possible complications caused by the COVID-19 virus, such speculation concerning possible future conditions does not constitute a ‘compelling reason’ for temporary release.” United States v. Thomas, No. 19-176, 2020 U.S. Dist. LEXIS 55680, at *3 (W.D. Pa. Mar. 31, 2020).
• “[T]here is no indication that Green's medical needs are not being addressed at the ACJ; in fact, he is seemingly receiving appropriate medical care. While the Court is sympathetic to Green's medical concerns and claims regarding possible complications caused by the COVID-19 virus, such speculation concerning possible future conditions does not constitute a "compelling reason" for temporary release.” United States v. Green, No. 1985, 2020 U.S. Dist. LEXIS 53440, at *4-5 (W.D. Pa. Mar. 27, 2020).
• “Defendant specifies no compelling reason for release, such that he suffers from a serious health condition which places him at higher risk for contracting the COVID-19 virus, and only argues that the virus poses a risk to him and to other inmates and his ability to meet and communicate with his counsel has been thwarted by this pandemic.” United States v. Bastianelli, No. 17-305, 2020 U.S. Dist. LEXIS 53441, at *3 (W.D. Pa. Mar. 27, 2020).
As stated above, the detention of pre-trial detainees and immigration detainees
is governed by the Fifth Amendment. The Court does not reconcile how detaining
immigration detainees—many of whom have no right to remain in the country and
many of whom have already been convicted of serious crimes—is “heartless and
inhumane” while detaining pre-trial detainees, who are presumed innocent, have
shown no “compelling reason” for release when making identical claims. Indeed,
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the “compelling reason” showing is far less than that required to show a constitutional violation.
B. The Balance of Interests Does not Favor Release 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 v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)). Notably, Petitioners dismiss any discussion of the legitimate governmental objective in securing their removal. See, e.g., Demore v. Kim, 538 U.S. 510, 513 (2003). Respondents have a substantial interest in enforcing immigration law, protecting the community (including, sometimes, protecting detainees from themselves) and preventing them from absconding. Id. at 515. As far as the balance of equities are concerned, if Respondents provide cost-free care to Petitioners while they remains in custody, the interests of both Petitioners and Respondents are served.
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Conversely, when Petitioners are released, the fully-funded medical care from Respondents discontinued, and Respondents’ interests in ensuring compliance with the immigration laws—the laws that many Petitioners have repeatedly violated—are frustrated.
The public is also served by maintaining Petitioners in custody, and disserved by their release. Their claim that the “public interest” is served by their release warrants scrutiny. Doc. 12 (Br. In Support) at 7-8. The criminal histories of many of these Petitioners says otherwise, and the Court does not explain how release into public community centers or public hospitals will not “suffocate the public health system” or prevent putting “large swaths of the public at risk.” Id. Though Petitioners claim generally that they will receive better care outside of the facilities, they do not explain how they will obtain such care. To the extent Petitioners expect local hospitals to swallow the costs of potential treatment, the Court does not explain how this result is in the public interest.
C. The Court failed to Engage in Any Measured Analysis In its uncontrolled release order, the Court released convicted drug traffickers, fraudsters, domestic abusers, and those with contacts affiliated with designated terrorist organizations to the public, finding that the “public interest heavily favor[ed]” release and that there was no risk of absconding because “failure to appear at future immigration proceedings would carry grave consequences of which
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Petitioners are surely aware.” Doc. 47 (Order) at 23. This analysis ignores the fact that many of these individuals have committed unlawful acts without regard to the “grave consequences” of their actions, including those that sound in immigration.
Unless the Fifth Amendment affords citizens in pre-trial detention less rights than it does to unlawful criminal aliens, the Court has no principled basis for issuing en masse release orders to criminal aliens when pre-trial citizens have not been released. In considering § 3142(i) petitions, the courts have engaged in a measured, case-by-case analysis. “While the generalized risks of COVID-19 cannot be disputed, courts evaluating whether pretrial release is necessary must evaluate the particularized risks posed to an individual defendant.” United States v. Bell, No. 17cr-20183-1, 2020 U.S. Dist. LEXIS 58850, at *17 (E.D. Mich. Apr. 3, 2020), contra Doc. 47.
In § 3142(i) petitions, courts have denied temporary release for a number of different reasons. Courts have denied release where there was a “likelihood the defendant's proposed release plan would increase COVID-19 risks to others, particularly if the defendant is likely to violate conditions of release, as Defendant has in the past.” United States v. Boatwright, No. 2:19-cr-00301-GMN-DJA, 2020 U.S. Dist. LEXIS 58538, at *22 (D. Nev. Apr. 2, 2020). Courts have also denied release where, “[petitioner] offers nothing more than speculation that home detention would be less risky than living in close quarters with others at CoreCivic,
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which at least has screening practices and other reasonable COVID-19 precautions in place.” United States v. Clark, No. 19-40068-01-HLT, 2020 U.S. Dist. LEXIS 51390, at *21 (D. Kan. Mar. 25, 2020). Courts have further denied § 3142(i) petitions where the petitioner does not “address the risk of exposure to federal employees charged to monitor him if released or the health care system's capacity to provide him with adequate treatment if he were to contract the virus.” United States v. Lunnie, No. 4:19-cr-00180 KGB, 2020 U.S. Dist. LEXIS 57764, at *12 (E.D. Ark. Apr. 2, 2020).
The Court’s order contains none of this case-by-case analysis. It does not analyze whether any of these individuals would pose a danger to the community, whether they are in fact safer by virtue of release, whether they are likely to return to custody for removal, or whether their release plan posed any tangible benefit to society. Citizens petitioning for release pending trial must make these showings, yet under the Court’s order, due process guarantees release for criminal aliens pending removal. III. Release is Improper Relief.
Though citing the conditions of their detention as the problem, Petitioners nevertheless demand release, concluding it is the only possible solution. See Doc. 12 (Br. In Support) at 23 (emphasis in original) (“Release from detention is the only option to protect vulnerable adults from COVID-19 because of the above-described
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conditions at the ICE Facilities.”); Doc. 1 (Compl.) p. 5 (arguing that release is “the only viable public health strategy available” to address their claims). Petitioners’ demand is both legally inappropriate and factually unwarranted.
The appropriate remedy for a successful conditions of confinement challenge is a change to the violative conditions. See Tillery v. Owens, 907 F.2d 418, 429 (3d Cir. 1990) (emphasis in original) (internal citation omitted) (quoting Milliken v. Bradley (Milliken II), 433 U.S. 267, 280 (1977)) (noting that the nature of the “remedy is to be determined by the nature and scope of the constitutional violation” and thus must be “related to ‘the condition’ alleged to offend the Constitution”). This is certainly true if the challenge was brought properly as a civil rights action. See supra Section I; Tillery, 907 F.2d at 429 (upholding district court’s prohibition on double-celling of inmates in response to Eighth Amendment challenge to overcrowded conditions in state prison). It should also be true if the challenge is allowed to proceed via a habeas petition. See Preiser, 411 U.S. 499 (emphasis added) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”).
Release, on the other hand, is not appropriate. “The appropriate remedy for such constitutional violations… [is] not release from confinement.” Crawford, 599 F.2d at 892; Mutschler v. Commonwealth, No. 3:12-CV-0004, 2012 U.S. Dist.
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LEXIS 78838, at *6 (M.D. Pa. June 6, 2012) (“we… will dismiss the petition because it seeks release from confinement under 28 U.S.C. § 2254 as a remedy for allegedly unconstitutional conditions of confinement and because such relief is not available to him through a habeas corpus petition.”). Simply put, “there is no constitutional right to be released from an otherwise legitimate sentence solely because the conditions of the confinement during that legitimate sentence” are allegedly unconstitutional.” Davis v. Pa. Dep't of Corr., No. CIV.A. 15-587, 2015 WL 5918909, at *4 (W.D. Pa. Oct. 7, 2015) (quoting Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir.1979)) (“The appropriate remedy for such constitutional violations, if proven, would be a judicially mandated change in conditions and/or an award of damages, but not release from confinement.”). If it is found that a constitutional violation has occurred, “[t]he function of a court is limited to determining whether a constitutional violation has occurred, and to fashioning a remedy that does no more and no less than correct that particular constitutional violation.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (citing Rhodes v. Chapman, 452 U.S. 337, 352 (1981) and Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)).
In any event, release is not necessary to address Petitioners’ concerns. The detention facilities at issue have taken numerous steps to address the pandemic. Ex. 1 (Dunn Decl.) ¶¶ 24-25. Where the claim relates to medical care in detention, the
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proper remedy is to order improvements in medical care, not release – which would put an end to Petitioner’s medical care, and which would not improve conditions. See Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989) (“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.”). If the detaining authority is failing in its obligations under DeShaney, the remedy is to order that those unconstitutional deficiencies be brought to the constitutional minimum.
“[I]t is axiomatic that the remedial power of a district court is coterminous with the scope of the constitutional violation found to exist.” Newman v. Alabama, 503 F.2d 1320, 1332-33 (5th Cir. 1974) (cited by Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). The constitutional remedy should mirror the constitutional violation; otherwise, the Court would grant to Petitioner that to which he has no entitlement, while permitting an allegedly unconstitutional deficiency to continue. See Pierce, 612 F.2d at 762 (“Systemic deficiencies in staffing which effectively deny inmates access to qualified medical personnel for diagnosis and treatment of serious health problems have been held to violate constitutional requirements… [and] court[s have] ordered the hiring of additional
39

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medical staff, both physicians and nurses, to bring the level of medical care up to the constitutional minimum.” (citing Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972) with approval)). Where, as here, the complaints are that Petitioners reside in an environment lacking “CDC mandated social distancing, “unhygienic conditions”, are forced to share a “small daily soap ration”, and clean without protective gear, (Doc 12, Br. In Support) releasing Petitioners does nothing to remedy those complaints. Their requested relief will not remedy the conditions of which they complain, but rather grants them release to which they are not lawfully entitled. IV. Even if this Court Holds that Criminal Aliens have Greater
Constitutional Rights to Release than Pre-trial Citizens, the TRO Cannot Stand in its Current Form “[I]njunctive relief should be ‘no more burdensome to the defendant than necessary to provide complete relief to plaintiffs.’ ” City of Philadelphia v. Attorney Gen. of United States, 916 F.3d 276, 292 (3d Cir. 2019), reh’g denied (June 24, 2019) (internal citations omitted); see also Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d. Cir. 1994) (“Injunctive relief should be narrowly tailored to fit specific legal violations.”); Hayes v. N. State Law Enf’t Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993) (“An injunction should be tailored to restrain no more than what is reasonably required to accomplish its ends.”). Also, it is improper for preliminary injunctions to exceed the scope of relief that could ultimately be obtained by prevailing on the merits. Cf. United States v. City of New York, 717 F.3d 72, 95 (2d
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Cir. 2013) (“We think that in some respects the injunction contains provisions that go beyond what would be appropriate to remedy only the disparate impact liability, and, because we have vacated the ruling granting summary judgment for the Intervenors on the disparate treatment claim, we will uphold only those provisions of the injunction that are appropriate as relief for the City’s liability on the Government’s disparate impact claim.”).
By ordering release without conditions, the Court has given Petitioners the ability to abscond and prevented Respondents from re-arresting. This order is unlawful, but to the extent the Court maintains it, the Government respectfully requests that any further injunction that issues: (1) automatically expire on April 30, 2020, unless renewed by Petitioners upon showing that COVID-19 continues to bar immigration detention of Petitioners; (2) that any injunction expires when any Petitioner absconds; (3) not prevent the government from taking Petitioners back into custody should they commit any further crimes or otherwise violate the terms of their release; (4) order Petitioners to comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing, and, until returned to ICE detention, the detainee should be placed on home detention; (5) order that Petitioners’ counsel report each Petitioner’s whereabouts every 7 days, and to notify Respondents and the Court immediately when a Petitioner absconds.
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CONCLUSION

Because Petitioners have improperly brought their conditions of confinement

claims in a habeas petition and cannot satisfy the requirements for preliminary relief,

Respondents respectfully request the Court decline to convert the TRO into a

Preliminary Injunction.

Respectfully submitted,

DAVID J. BYERLEY

DAVID J. FREED

Trial Attorneys

United States Attorney

U.S. Department of Justice, Civil Division

Office of Immigration Litigation

s/Joanne M. Sanderson

District Court Section

Joanne M. Sanderson

Assistant U.S. Attorney

PA 315327

NAVIN JANI

228 Walnut Street

Assistant U.S. Attorney

Harrisburg, PA 17101

Joanne.Sanderson@usdoj.gov

Phone: 717-221-4482

Fax: 717-221-4493

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, :

et al.,

: NO. 1:CV-20-0480

Petitioner-Plaintiffs

:

: (Jones, J.)

v.

:

:

CLAIR DOLL, in his official

:

Capacity as Warden of York

:

County Prison, et al.,

:

Respondents-Defendants : (Filed Electronically)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania and is a person of such age and discretion as to be competent to serve papers.
That on April 7, 2020, she served a copy of the attached RESPONDENTS’ RESPONSE TO THE COURT’S ORDER TO SHOW
CAUSE, ISSUED MARCH 31, 2020 AND OPPOSITION TO THE COURT’S TEMPORARY RESTRAINING ORDER

by electronic service pursuant to Local Rule 5.7 and Standing Order 04-6, ¶12.2 to

the following individual(s):

Addressees:

Witold J. Walczak

Carla G Graff

Erika Nyborg-Burch

vwalczak@aclupa.org carla.graff@dechert.com enyborg-burch@aclupa.org

Muneeba S Talukder Thomas James Miller

Vanessa L. Stine

mtalukder@aclupa.org thomas.miller@dechert.com vstine@aclupa.org

Will W. Sachse

David C Fathi

Eunice H Cho

will.sachse@dechert.com dfathi@aclu.org

echo@aclu.org

Michael Tan

Omar C. Jadwat

Kelly A Krellner

mtan@aclu.org

ojadwat@aclu.org

Kelly.Krellner@dechert.com

s/Joanne M. Sanderson

Joanne M. Sanderson

Assistant United States Attorney

 
 Case 1:20-cv-00480-JEJ Document 60 Filed 04/13/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

ORDER

April 13, 2020

On March 31, 2020, we issued a Temporary Restraining Order (“TRO”)

which directed Respondents to release Petitioners immediately on their own

recognizance from ICE detention facilities due to imminent, dire threat of COVID-

19 contraction. (Doc. 47). That TRO is scheduled to expire today at 5:00 p.m. (Id.).

As we are permitted to do, we shall now EXTEND that TRO for a like

period. FED. R. CIV. P. 65(b)(2). The gravity of the COVID-19 pandemic in this

country has only worsened since we issued our initial TRO, and, as such,

Petitioners’ continued release during this process is warranted. Moreover, this

extension gives both parties ample opportunity to augment the record before us

prior to our decision on the issuance of a preliminary injunction. In so doing, we

are mindful that both parties face challenges in collecting documentation and

1

Case 1:20-cv-00480-JEJ Document 60 Filed 04/13/20 Page 2 of 4
affidavits to support their respective positions and recognize that additional time is necessary to properly do so. We also note that both Petitioners and Respondents agree that a hearing on this matter is not necessary and so find that a complete record is all the more important. Accordingly, we will allow the parties a period of time to file any declarations and factual stipulations in order to augment those declarations that have already been filed.
In extending this TRO, we shall impose upon Petitioners additional conditions of release meant to assuage the Respondents’ concerns that certain Petitioners may pose a flight risk or danger to the community. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Temporary Restraining Order issued in this case, (Doc. 47), is EXTENDED for an additional FOURTEEN (14) DAYS.
2. This TRO will now EXPIRE on April 27, 2020 at 5:00 p.m. The said release period shall extend until such time as the COVID-19 state of emergency as declared by the Governor of the Commonwealth of Pennsylvania is lifted, or by further Order of this Court.
3. The parties may augment the record with any additional declarations and factual stipulations by the close of business on April 23, 2020.
4. The following conditions shall attach to this Order: a. This Order expires immediately if a Petitioner absconds;
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b. This Order requires Petitioners to comply with all Executive Orders of the Governor of Pennsylvania, as well as national, state, and local guidance regarding staying at home, sheltering in place, and social distancing;
c. This Order does not prevent the government from taking Petitioners back into custody should they commit any further crimes or otherwise violate the terms of their release;
d. The Petitioners shall report their whereabouts once per week to their attorneys, who in turn shall report to the Respondents if a Petitioner has absconded;
e. The Petitioners must appear at all hearings pertaining to their removal proceedings, and in the event that they are subject to a final order of deportation for which arrangements have been finalized within the period of this Order, they shall fully comply with the said order of deportation and all instructions pertaining thereto; and
f. Respondents may impose other reasonable nonconfinement terms of supervision that would not require Petitioners to violate national, state and local guidance regarding staying at home, sheltering in place, and social distancing.
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s/ John E. Jones III John E. Jones III United States District Judge
4

 
 Case 1:20-cv-00480-JEJ Document 62 Filed 04/17/20 Page 1 of 66

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER; ADEBODUN ADEBOMI IDOWU; COURTNEY STUBBS; RIGOBERTO GOMEZ HERNANDEZ; RODOLFO AGUSTÍN JUAREZ JUAREZ; MEILING LIN; HENRY PRATT; JEAN HERDY CHRISTY AUGUSTIN; MAYOWA ABAYOMI OYEDIRAN; AGUS PRAJOGA; MANSYUR; CATALINO DOMINGO GOMEZ LOPEZ; DEXTER ANTHONY HILLOCKS; FAZAL GHAFFAR; JUAN ANTONIO GUMBS NAVARRO T.S.N.; ROBINSON AGUSTIN YOC; ANDREW DAVIS; ABDUL MOHAMMED; MIKHAIL VIKTOROVICH GOLOVERYA; OLEG ZHUIKO; STEPHEN BROWN; D.F.; and AJARHI ROBERTS;
Plaintiffs-Plaintiffs, on behalf of themselves and others similarly situated,
vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison; CRAIG A. LOWE, in his official capacity as Warden of Pike County Correctional Facility; ANGELA HOOVER, in her official capacity as Warden of Clinton County Correctional Facility; SIMONA FLORES-LUND, in her official capacity as Field Office Director, Enforcement and Removal Operations; U.S. Immigration

Case No. 1:20-cv-00480-JEJ
AMENDED VERIFIED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF
CLASS ACTION

Case 1:20-cv-00480-JEJ Document 62 Filed 04/17/20 Page 2 of 66
and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; and CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;
Defendants-Defendants.
INTRODUCTION Plaintiffs/Plaintiffs (hereafter “Plaintiffs”) are noncitizens held in civil detention by Immigration and Customs Enforcement (“ICE”) at York County Prison, Pike County Correctional Facility, and Clinton County Correctional Facility, while they await disposition of their immigration cases or deportation, or in some cases (“Original Plaintiffs”) they are in the community after this Court issued a temporary restraining order (“TRO”) ordering their release from the foregoing detention facilities, but they remain subject to ICE supervision. They are united by the fact that they are over age 45 and/or adults who have serious preexisting medical conditions, which the United States Centers for Disease Control and Prevention (“CDC”) or other medical experts have determined put them at a grave risk of severe illness or death from COVID-19. On March 31, this Court ordered ICE to release the original plaintiffs, and on April 7 this Court issued a TRO in a companion case directing ICE to release similarly-situated immigration detainees from two of these facilities, because record evidence showed that
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“adequate measures are not in place and cannot be taken to protect [such high-risk detainees] from COVID-19 in the [York, Clinton and Pike] detention facilities, and that [absent release] catastrophic results may ensue, both to Plaintiffs and to the communities surrounding the Facilities.” See Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *7 (M.D. Pa. Mar. 31, 2020); see also Memorandum and Order, Hope v. Doll, No. 20-cv-00562-JEJ (M.D. Pa. Apr. 7, 2010), ECF 11 at 9 (“We cannot allow the Plaintiffs before us, all at heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.”).
As this Court has recognized, “[b]ased upon the nature of the virus, the allegations of current conditions in the prisons, and Plaintiffs’ specific medical concerns, detailed below, we therefore find that Plaintiffs face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.” Thakker, 2020 WL 1671563, at *4.
The precarious situation facing the medically vulnerable Plaintiffs in this case who are still in ICE detention is in all material respects indistinguishable from that of the original plaintiffs in this case and in Hope. Circumstances only continue to worsen at the three facilities at issue here—as of April 16, ICE has confirmed that seven detainees have tested positive for COVID-19 in Pike, with another
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positive case at York.1 Yet this information is incomplete. County employees are not included in the ICE statistics, but we know seven Pike employees tested positive for COVID-19. Furthermore, these facilities house county detainees and counties are not providing timely updates. Pike County Prison’s last update about COVID-19 was 11 days ago. York announced on April 4, 2020 that one detainee tested positive but has not released any additional information. Clinton County Correctional Facility’s Warden last public comment on COVID-19 not being at Clinton County Correctional Facility was nearly three weeks ago. In light of the explosive spread of COVID-19 throughout Pennsylvania and the deteriorating conditions at the detention facilities, Plaintiffs respectfully ask this Court to certify a class of noncitizens at elevated risk of suffering severe health consequences or dying if they contract COVID-19, and to issue expedited relief.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 5 U.S.C. § 702 (waiver of sovereign immunity), 28 U.S.C. § 2241 (habeas jurisdiction), and
1 Confirmed Cases, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited April 17, 2020). Additionally, on April 11, 2020, ICE transferred 25 or more people in ICE custody from Pike County Correctional Facility to facilities elsewhere, including Prairieland Detention Center in Alvarado, TX. After this transfer, Prairieland Detention Facility has 3 ICE detainees who tested positive for COVID-19.
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Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
2. Venue lies in the United States District Court for the Middle District of Pennsylvania because Plaintiffs are detained by Defendants/Defendants (hereafter “Defendants”) at three county prisons—located in York, Pike, and Clinton counties—all of which are located within the District. 28 U.S.C. § 2242. Venue is proper in the Middle District of Pennsylvania because a substantial portion of the relevant events occurred in the District and because several Defendants reside in the District. 28 U.S.C. § 1391(e)(1).
PARTIES Plaintiffs
3. Plaintiff Bharatkumar G. Thakker is a 65-year-old man from India who has lived in the United States for 47 years. He was detained by ICE at Pike County Correctional Facility for 27 months. He suffers from several serious health conditions, including respiratory problems, declining kidney function, high blood pressure, high cholesterol, and a history of seizures. His medical conditions and his age place him at high risk of severe illness or death if he contracts COVID-19. Mr. Thakker was released from Pike County Correctional Facility pursuant to a Temporary Restraining Order (“TRO”) granted by this Court on March 31, 2020.
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4. Plaintiff Adebodun Adebomi Idowu is a 57-year-old man from Nigeria who has lived in the United States since 2012. He was detained by ICE at Clinton County Correctional Facility for 17 months. He suffers from Type II diabetes, high blood pressure, and high cholesterol. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Idowu was released from Clinton County Correctional Facility pursuant to a TRO granted by this Court on March 31, 2020. He has been hospitalized near his home for the past week with COVID-19.
5. Plaintiff Courtney Stubbs is a 52-year-old man from Jamaica who has lived in the United States for 28 years. He was detained by ICE at Pike County Correctional Facility for 9 months. Mr. Stubbs is a kidney-transplant patient, for which he takes medications that compromise his immune system, suffers from Type II diabetes, and has heart stents. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Stubbs was released from Pike County Correctional Facility pursuant to a TRO granted by this Court on March 31, 2020.
6. Plaintiff Rigoberto Gomez Hernandez is a 52-year-old man from Mexico who has lived in the United States for 16 years. He was detained by ICE at Pike County Correctional Facility for 6 months. He is diabetic and currently receiving treatment for an ulcer. His medical conditions place him at high risk of
5

Case 1:20-cv-00480-JEJ Document 62 Filed 04/17/20 Page 7 of 66
severe illness or death if he contracts COVID-19. Mr. Gomez Hernandez was released from Pike County Correctional Facility pursuant to a TRO granted by this Court on March 31, 2020.
7. Plaintiff Rodolfo Agustín Juarez Juarez is a 21-year-old man from El Salvador and has lived in the U.S. for four years. He was detained by ICE at York County Prison for a month. He suffers from diabetes. In March, he had a fever, a persistent cough, and trouble breathing. He was not tested for COVID-19 while detained. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Juarez was released from York County Prison pursuant to a TRO granted by this Court on March 31, 2020.
8. Plaintiff Meiling Lin is a 45-year-old woman from China who was detained by ICE upon arrival in the United States. She was detained at York County Prison for a year. She suffers from chronic hepatitis B, severe chronic pain, liver disease and other medical complications as a result of her forced sterilization surgery in China. These medical conditions put Ms. Lin at a high risk of severe illness or death if she contracts COVID-19. After this lawsuit was filed, ICE released Ms. Lin from York County Prison on March 30, 2020.
9. Plaintiff Henry Pratt is 50-year-old man from Liberia who has lived in the United States for 30 years. He was in ICE detention for three years. He suffers from Type II diabetes and high blood pressure, for which he receives medication.
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His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Pratt was released from Clinton County Correctional Facility pursuant to a TRO granted by this Court on March 31, 2020.
10. Plaintiff Jean H.C. Augustin is a 34-year-old man from Haiti who has lived in the United States for 18 years. He was detained by ICE at York County Prison for 21 months. He suffers from diabetes, high blood pressure, chronic anemia, and nerve issues. He also was the victim of a gunshot wound, which caused permanent partial disability, and he suffers myriad health issues stemming from that injury. He required multiple hospitalizations during his detention. His medical conditions place him at high risk of severe illness or death if he contracts COVID19. Mr. Augustin was released from York County Prison pursuant to a TRO granted by this Court on March 31, 2020.
11. Plaintiff Mayowa Abayomi Oyediran is a 40-year-old man from Nigeria. He was detained by ICE at York County Prison for more than four months. He has severe asthma and an infection in his lungs. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Oyediran was released from York County Prison pursuant to a TRO granted by this Court on March 31, 2020.
12. Plaintiff Agus Prajoga is a 48-year-old man from Indonesia who has lived in the United States for 19 years. He was detained by ICE for three months at
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Pike County Correctional Facility. He has diabetes, cholesterol, high blood pressure, and hepatitis B. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. On March 27, 2020, after this lawsuit was filed, ICE released Mr. Prajoga from Pike County Correctional Facility.
13. Plaintiff Mansyur is a 41-year-old man from Indonesia who has lived in the United States for 21 years. He was detained by ICE at Pike County Correctional Facility for six months. He has diabetes, thyroid issues, and high blood pressure. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. On March 27, 2020, after this lawsuit was filed, ICE released Mr. Mansyur from Pike County Correctional Facility.
14. Plaintiff Catalino Domingo Gomez Lopez is a 51-year-old man from Guatemala who has lived in the United States for 16 years. He was detained by ICE at York County Prison for 16 months. Since being detained he suffered with the flu four times and in February 2020 was so ill that he was coughing blood. He was not tested for COVID-19 while detained. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Lopez was released from York County Prison pursuant to a TRO granted by this Court on March 31, 2020.
15. Plaintiff Dexter Anthony Hillocks is a 54-year-old man from Trinidad & Tobago who has lived in the United States for 20 years. He is a lawful permanent resident. He was detained by ICE at Pike County Correctional Facility for almost
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five years. Mr. Hillocks suffers serious health problems, including diabetes, high blood pressure, high cholesterol, and anemia. He also was recently diagnosed with leukemia. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Mr. Hillocks was released from Pike County Correctional Facility pursuant to a TRO granted by this Court on March 31, 2020.
16. Plaintiff Fazal Ghaffar is a 70-year-old man from Pakistan who has lived in the United States for more than 20 years. He has been detained by ICE at York County Prison since January 2020. He was the victim of a crime and has an application for a U nonimmigrant status pending. His age places him at high risk of severe illness or death if he contracts COVID-19.
17. Plaintiff Juan Antonio Gumbs Navarro is a 50-year-old man from the Dominican Republic who has lived in the United States for over thirty years. He is a lawful permanent resident who has been detained by ICE at York County Prison since September 2019. He suffers from diabetes, high blood pressure, and high cholesterol. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
18. Plaintiff T.S.N. is a 33-year-old woman from the Dominican Republic who has lived in the United States for nearly 17 years. T.S.N. is a pseudonym used herein to protect her identity due to the nature of her medical condition. She has been detained by ICE at York County Prison since July 2019. She suffers from
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asthma and is HIV positive. Her medical conditions place her at high risk of severe illness or death if she contracts COVID-19.
19. Plaintiff Robinson Agustin Yoc is a 31-year-old man from Guatemala who has lived in the United States since 2003. He has been detained by ICE since July 8, 2019 and is currently held at York County Prison. He suffers from asthma, a traumatic brain injury, PTSD, amnesia, anxiety, and depression. His medical conditions place him at high risk of severe illness or death if he contracts COVID19.
20. Plaintiff Andrew Davis is a 37-year-old man from Jamaica who has lived in the United States since 2009. He is a lawful permanent resident who has been detained by ICE since October 2019 and is currently held at York County Prison. He suffers from diabetes, high blood pressure, and high cholesterol. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
21. Plaintiff Abdul Mohammed is a 22-year-old man from Ghana who came to the United States three years ago as a student on an athletic scholarship. He has been detained by ICE at York County Prison since August 2019. He has asthma and high blood pressure, which puts him at high risk of severe illness or death if he contracts COVID-19.
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22. Plaintiff Mikhail Viktorovich Goloverya is a 36-year-old man who was born in the U.S.S.R region that is now the country of Kazakhstan. He is stateless. He has lived in the United States for 22 years and has been detained by ICE at Pike County Correctional Facility since November 2019. He suffers from high blood pressure, which places him at heightened risk of complications if he contracts COVID-19.
23. Plaintiff Oleg Zhuiko is a 53-year-old man from Kazakhstan who has lived in the United States for 23 years. He has been detained by ICE at Pike County Correctional Facility since November 2019. He suffers from high blood pressure, which places him at a heightened risk of complications if he contracts COVID-19.
24. Plaintiff Stephen Brown is a 56-year-old man from Jamaica who has lived in the United States for 39 years. He is an army veteran and lawful permanent resident who has been detained by ICE at Clinton County Correctional Facility since November 2019. He suffers from high blood pressure and borderline diabetes, has high cholesterol, and is a cancer survivor. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
25. Plaintiff D.F. is a 42-year-old man from Jamaica who has lived in the United States since 2007. D.F. is a pseudonym used herein to protect his identity due to the nature of his medical condition. He has been detained by ICE at Clinton County Correctional Facility since June 2019. He has HIV and kidney disease. His
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medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
26. Plaintiff Ajarhi Sazimbi Roberts is a 27-year-old man from Jamaica who has lived in the United States since he was a child. He is a lawful permanent resident who has been detained by ICE at Clinton County Correctional Facility since March 2020. He suffers from asthma, which places him at high risk of severe illness or death if he contracts COVID-19.
Defendants 27. Defendant Clair Doll is the Warden of the York County Prison in York, Pennsylvania. Defendant Doll is an immediate, physical custodian of Plaintiffs. He is sued in his official capacity. 28. Defendant Craig A. Lowe is the Warden of the Pike County Correctional Facility in Lords Valley, Pennsylvania. Defendant Lowe is an immediate, physical custodian of Plaintiffs. He is sued in his official capacity. 29. Defendant-Defendant Angela Hoover is the Warden of the Clinton County Correctional Facility in McElhattan, Pennsylvania. Defendant Hoover is an immediate, physical custodian of Plaintiffs. She is sued in her official capacity. 30. Defendant Simona Flores-Lund is the Field Office Director for Enforcement and Removal Operations (“ERO”) in the Philadelphia Field Office of Immigration and Customs Enforcement (“ICE”), an agency within the U.S.
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Department of Homeland Security. ERO is a division of ICE that manages and oversees the immigration detention system. In her capacity as Field Director for ERO, Defendant Flores-Lund exercises control over and is a custodian of immigration detainees held at all of the correctional facilities in Pennsylvania that house ICE detainees, including the York County Prison, the Pike County Correctional Facility, and Clinton County Correctional Facility. At all times relevant to this Complaint, Defendant Flores-Lund was acting within the scope and course of her employment with ICE. She is sued in her official capacity.
31. 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 Plaintiffs. At all times relevant to this complaint, Defendant Albence was acting within the scope and course of his position as an ICE official. He is sued in his official capacity.
32. 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. ERO, a division within ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
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33. Defendant Chad Wolf is sued in his official capacity as the Acting Secretary for DHS. In this capacity, he has responsibility for the administration of immigration laws pursuant to 8 U.S.C. § 1103(a), has authority over ICE and its field offices, and has authority to order the release of Plaintiffs. At all times relevant to this complaint, Defendant Wolf was acting within the scope and course of his position as the Acting Secretary for DHS. He also is a legal custodian of Plaintiffs. He is sued in his official capacity.
STATEMENT OF FACTS A. COVID-19 Poses A Grave and Elevated Risk of Harm, Including Serious
Illness or Death, to Persons Age 45 and Over and Those with Certain Medical Conditions. 34. COVID-19 is a disease caused by coronavirus that has reached pandemic status. According to the World Health Organization, as of April 14, more than 1,848,439 people have been diagnosed with COVID-19 in 213 countries or territories around the world and 117,217 have died as a result. Ex. 35, Apr. 15, 2020 Declaration by Dr. Joseph J. Amon (“Amon-New Decl.”) at ¶ 5.2 The United States has the highest number of reported cases and deaths in the world: as of April 14,
2 Plaintiffs rely on two declarations from Dr. Amon. Ex. 35 (“Amon-New Decl.”) has been prepared for this lawsuit and is dated April 15. Plaintiffs also rely on an earlier Amon declaration that was attached to the original March 24, 2020, petition/complaint, which will continue to be referred to as “Amon Decl.” See ECF 2-1.
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2020, over 594,000 people have been diagnosed with the disease and over 25,000 people have died thus far. Id. In Pennsylvania, there are at least 25,000 confirmed cases and over 580 deaths. Id. The rates of infection are exponential, meaning that, for each person infected one day, the next day we should expect to see not one, but many more instances of infection. Id. Without effective public health interventions, CDC projections indicate about 200 million people in the United States could be infected over the course of the pandemic, with as many as 1.5 million people dying from this infection. Golob Decl. at ¶ 11 (ECF 2-2).3 Outcomes from COVID-19 vary from asymptomatic infection to death. Individuals who are at low risk may experience mild symptoms, while high-risk individuals may suffer respiratory failure from the disease. Amon-New Decl. at ¶ 6. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen will die. Golob Decl. at ¶ 4 (ECF 2-2). In other words, more than one in every seven people in this high-risk group are likely to die, and an even higher percentage will suffer serious illness.
35. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. Id. at ¶ 9.
3 Dr. Golob’s declaration was attached to the original complaint, see ECF 2-2, but is still relevant to provide medical background about the virus.
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36. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. Id.
37. Emerging evidence also suggests that COVID-19 can trigger an overresponse of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id.
38. Individuals aged 45 and older and those of any age with certain underlying medical conditions are at higher risk of severe complications or death if they are infected with COVID-19. Amon-New Decl. at ¶¶ 8, 9. According to the CDC, these underlying conditions include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions (“including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy [seizure disorders], stroke, intellectual disability”), and current or recent pregnancy. Id. The CDC also identifies individuals with hypertension or body mass index (BMI) greater than 40 to be at higher risk for severe illness. Id. at ¶ 8.
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39. There is no vaccine, cure, or anti-viral treatment for COVID-19 at this time. The only way to protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected in the first place. Id. at ¶ 6; Golob Decl. at ¶ 10 (ECF 2-2).
40. COVID-19 infects people who come into contact with respiratory droplets that contain the coronavirus. Amon-New Decl. at ¶ 22. Speech alone can produce these droplets. Id. at 23. Contact with particles that transmit the virus can occur at a distance of six feet, with confirmed transmission in hospital settings at a distance of 13 feet. Id. at ¶ 22. It is also possible that an individual can become infected by touching a surface with the virus and then touching their mouths. The virus may also travel on surfaces. Id. Thus, the only known means of minimizing the risk of infection are social distancing and increased sanitization. Id. at ¶ 24.
41. Research shows that social distancing is the primary means of risk mitigation. Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic. Id. at ¶24. The CDC recommends a social distance of at least six feet to minimize the risk of spread. Id. at ¶¶ 22; Golob Decl. at ¶ 10 (ECF 2-2).
42. In response to this research, countries around the world have made social distancing public policy. In the United States, 50 states, seven territories, and the District of Columbia have all taken formal executive action to contain the
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outbreak. Amon-New Decl. at ¶ 25. These measures include stay at home orders that now cover at least 316 million people across the country. Id. On April 1, Governor Wolf extended the pre-existing county-by-county stay-at-home orders in Pennsylvania to cover the entire state. Id. The idea behind these actions is that, by “flattening the curve,” those most vulnerable will be least likely to become infected and, if they do, the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them. Id. at ¶ 26.
B. Conditions in Pennsylvania’s Immigration Detention Facilities Increase the Risk of COVID-19 Infection. 43. The conditions in the three immigrant detention facilities contravene
medical and public health directives for risk mitigation. The only effective way to prevent infection is to practice proper hygiene and, crucially, social distancing of at least six feet. Plaintiffs and those who are similarly situated at Clinton, Pike, and York describe conditions in these facilities that render it impossible to practice social distancing. They sleep in dorms with poor ventilation that house 50 to 70 other individuals on bunk beds that are well under six feet apart, or in small cells where they are double or triple bunked. They share bathrooms, have to use the same sinks in which they brush their teeth to access hot water for food and coffee, and crowd around communal eating tables so small the edges of their trays touch.
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44. Plaintiffs at York are in dorms of 50 to 60 men and sleep two to three feet apart or in dorms with 40 women who sleep so close they can reach out and touch each other. Ex. 37 (Gumbs Navarro Decl.) at ¶ 16; Ex. 40 (Davis Decl.) at ¶ 12; Ex. 38 (T.S.N. Decl.) at ¶ 15; see also Augustin Decl. at ¶ 16 (ECF 2-11). At Clinton, 70 men are housed in a single dorm, where they sleep on bunk beds that are within an arm’s length. Ex. 45 (D.F. Decl.) at ¶ 8; see also Pratt Decl. at ¶ 6 (ECF 2-10); Idowu Decl. at ¶ 11 (ECF 2-4). And at Pike, they are usually double or triple bunked in cells and sleep within two or three feet of one another. Ex. 43 (Zhuiko Decl.) at ¶ 12; Ex. 42 (Goloverya Decl.) at ¶ 10; see also Thakker Decl. at ¶ 11 (ECF 2-3).
45. The bathrooms are similarly cramped. At York, there are only six toilets and six showers for nearly 60 people. Davis Decl. at ¶ 14; Ex. 36 (Ghaffar Decl.) at ¶ 9; see also Augustin Decl. at ¶ 20 (ECF 2-11). At Pike, Plaintiffs have a toilet and sink in their cell, which further crowds the tiny space, making it impossible to maintain 6 feet of distance from each other. Zhuiko Decl. at ¶ 14; see also Stubbs Decl. at ¶ 13 (ECF 2-5). Plaintiffs in Pike share three showers among the entire block. Goloverya Decl. at ¶ 12. At Clinton, there are only four showers, four sinks, and four toilets for seventy men. Ex. 44 (Brown Decl.) at ¶ 14. The bathrooms also have a persistent pest problem: black bugs crawl out from the drain. Ex. 46 (Roberts
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Decl.) at ¶ 9; Pratt Decl. at ¶ 10 (ECF 2-10) There are flies throughout the dorm, including in the eating area. Roberts Decl. at ¶ 10.
46. Plaintiffs also eat close together. At York, people are forced to eat nearly elbow to elbow from open trays. Ghaffar Decl. at ¶ 8; Davis Decl. at ¶ 13. At Clinton, the communal eating space is so limited that about half of the 70 individuals in each dorm have to eat in their beds. Brown Decl. at ¶ 13; see also Idowu Decl. at ¶ 12 (ECF 2-4). And at Pike, people are required to eat in their cells, forcing them to eat in their beds due to the size of the cells. Zhuiko Decl. at ¶ 13.
47. Other troubling practices persist. Phones and tablets at Pike are shared among many detained individuals within each block, yet the allotted supplies to clean are diluted and insufficient. Zhuiko Decl. at ¶ 10. At York, detainees also share phones and tablets but they are not provided cleaning supplies to disinfect them. Juarez Juarez at ¶ 15 (ECF 2-8); Ex. 41 (Mohammed Decl.) at ¶ 13. Hallways also pose risks of contagion. At York and Clinton, all blocks share narrow hallways where social distancing is not and cannot be practiced, and everyone, including quarantined individuals, must use these hallways to access services. D.F. Decl. at ¶ 20; Augustin Decl. at ¶ 19 (ECF 2-11); Stubbs Decl. at ¶ 12 (ECF 2-5). Two of the three washing machines are regularly broken at Clinton, leaving just one washer for 70 men. Roberts Decl. at ¶ 13; see also Stubbs Decl. at ¶ 12 (ECF 2-5); Pratt Decl. at ¶ 11 (ECF 2-10).
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48. To make matters worse, Defendants regularly fail to provide Plaintiffs with adequate supplies. Men at York are still given only one bar of soap a week (women are given two bars), which they must bring with them to the bathroom. Davis Decl. at ¶ 16; T.S.N. Decl. at ¶ 20; Gumbs Navarro Decl. at ¶ 22. They are not provided any sanitizer. Id. While Clinton provides soap for hand washing, the facility regularly runs out. Roberts Decl. at ¶ 11. The same is true for the newly installed hand sanitizer, which runs out regularly and is not replenished until a shift change. Id. At Pike, soap continues to be rationed. Goloverya Decl. at ¶ 12; see also Stubbs Decl. at ¶ 16 (ECF 2-5). One Plaintiff, who can afford to buy soap, buys his own from the commissary. Goloverya Decl. at ¶ 12. They are still not provided hand sanitizer. Zhuiko Decl. at ¶ 11.
49. Other new measures instituted by the detention facilities are likewise inadequate. Facilities have provided face masks but are requiring Plaintiffs to reuse them for up to two weeks. Ghaffar Decl. at ¶ 12; T.S.N. Decl. at ¶ 26; Gumbs Navarro Decl. at ¶ 18; Zhuiko Decl. at ¶ 16; Brown at ¶ 18. Such re-use transforms the masks into vectors for infection. See Amon-New Decl. at ¶ 41(d). Furthermore, they have no way to properly wash their masks. At York, people hand-wash their masks in the bathroom sinks. Ghaffar Decl. at ¶ 12. At Clinton, one or two of the three washing machines are often out of order, which limits their ability to wash their clothes and masks. Roberts Decl. at ¶ 13.
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50. York and Clinton continue practices that are wholly insufficient to prevent viral spread across the facility. At York, all people housed in a single unit are still put on quarantine within the same dorms where they are unable to practice social distancing. Ghaffar Decl. at ¶ 10; see also Baranoski Decl. at ¶ 6 (ECF 2-18). Temperature checks are infrequent, with one individual reporting checks just twice since March and another reporting a single test in early April, four days ago. Davis Decl. at ¶ 18; Gumbs Navarro Decl. at ¶ 23. In the women’s unit at York, a woman was sick with COVID-19 symptoms for six days before she received medical attention. T.S.N. Decl. at ¶ 22. Despite multiple women now exhibiting symptoms of COVID-19, no one has been tested. Id. at ¶ 23. Nor have the dorms been rearranged to implement recommended social distancing. Id. at ¶15. Last week at Clinton, a Plaintiff saw a contractor having his temperature checked after he was already in their dorm. D.F. Decl. at ¶ 21. And, although some individuals have reported temperature checks, no Plaintiffs have received cheek swab tests. Because of asymptomatic and pre-symptomatic transmission, temperature checks alone are insufficient to identify infected individuals who may be infected and thus infecting others. Amon-New Decl. at ¶ ¶ 24, 37.
51. Similarly, instead of instituting protective measures, like social distancing, Pike’s response has been a facility lockdown, which has exacerbated the unsafe conditions. Goloverya Decl. at ¶ 11. Because they are locked in their cells for
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twenty-three and half hours a day, Plaintiffs sometimes forego showering to have time to call family or prepare food. Id. Additionally, even though there are now empty cells, Defendants continue to detain people two or three to a cell. Zhuiko Decl. at ¶ 8. Furthermore, cleaning supplies continue to be in short supply and their use is communal: the block uses the same mop and bucket of water for the entire day. Goloverya Decl. at ¶ 13; see also Thakker Decl. at ¶ 14 (ECF 2-3).
52. The failure to perform tests of staff who have ongoing community contacts presents a daily risk of introduction of the virus into the detention facility. Amon-New Decl. at ¶ 37(a), (d). The entire state of Pennsylvania is reported to have “widespread” community transmission, and therefore all staff are potential vectors of the virus. Id. at ¶¶ 50(a), 27(a). The possibility of asymptomatic transmission means that monitoring staff for fever is also inadequate for identifying all who may be infected and preventing transmission. Id. at ¶ 37(d).
53. In other jurisdictions where testing has been made available to correctional officers who enter and leave facilities regularly, the confirmed rates of infection are high. Id. at ¶¶ 49-51.
54. The risk to Plaintiffs and the proposed class is all the greater because COVID-19 has already arrived at the ICE facilities. As of April 16, 2020, ICE reports
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that seven detainees have tested positive at Pike, and one at York.4 Although ICE reports numbers of ICE employees who test positive for COVID-19 at its own facilities, it does not report similar figures for employees at facilities where it detains immigrants under contract with local jails, such as Pike, York, and Clinton. However, news reports show that multiple staff and workers have tested positive at Pike.5 Infectious spread has proven lethal: two women serving criminal sentences at Pike thus far have contracted COVID-19 and died.6
C. Continued ICE Detention is Unsafe for Those Most Vulnerable to COVID-19. 55. Without a vaccine or cure for COVID-19, mitigating the risk of
contracting the virus is the only known way to protect those who are most vulnerable to serious harm from infection. Golob Decl. at ¶ 10 (ECF 2-2); Amon-New Decl. at ¶¶ 6, 24.
4 Confirmed Cases, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited April 17, 2020) 5 Coronavirus COVID-19 Updates from the Pike County Commissioners, April 2, 2020 Update, https://news.pikepa.org/post/2020/03/09/COVID-19-Update (last visited April 17, 2020) 6 Joseph Kohut, Two Pike County inmates die from coronavirus; seven staff members, five other inmates test positive, Times Tribune (Apr. 7, 2020), available at https://www.thetimes-tribune.com/coronavirus/two-pike-county-inmates-diefrom-coronavirus-seven-staff-members-five-other-inmates-test-positive1.2615732).
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56. Because the risk of infection is at its zenith in detention centers where social distancing measures are impossible to implement, where people share common spaces that are not regularly sanitized, and where individuals are regularly exposed to potential vectors of infection, public health experts have recommended release of vulnerable individuals from custody. Amon-New Decl. at ¶¶ 58-59.
57. Medically vulnerable individuals who become infected will not receive adequate medical treatment. Immigration detention facilities lack adequate medical infrastructure to address the strain of an outbreak. Amon-New Decl. at ¶ 53. As a result, detained individuals who are age 45 and over, or are any age with specified pre-existing medical conditions that put them at high risk of illness if infected by COVID-19 are at grave risk of severe illness and death and should be released.
58. If they are not released before the virus spreads through the prison, detainees will likely be unable to access necessary medical care, including positive pressure ventilation and, in extreme cases, extracorporeal mechanical oxygenation. See Golob Decl. at ¶ 8 (ECF 2-2). This is because an outbreak among detainees and corrections staff will strain the limited medical infrastructure in the rural counties in which these detention facilities are located. Once infection spreads throughout the detention center, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will
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die. Amon-New Decl. at ¶ 54. Thus, high risk individuals should be released from detention centers before it is too late.
59. Similar viral spread has already occurred at detention facilities throughout the country. Cook County Jail has become an epicenter of the pandemic, with the highest number of infected individuals of any single location in the country. As of April 13, 2020, there were 524 confirmed cases. Id. at ¶ 49. The rate of spread at these facilities has been shown to far exceed the rate in the general population. In New York City, for example, where testing began earlier than in Pennsylvania, the infection rate for COVID-19 at local city jails is more than seven times higher than the rate citywide and 87 times higher than the country at large. Id. As of April 14, 2020, at least 323 people in local jails in New York City had confirmed COVID-19 cases, even after authorities had released several hundred people from custody. Id.
60. In another well-publicized example, a low-security federal prison in Oakdale, Louisiana, has experienced a severe outbreak of COVID-19. Since midMarch, dozens of prisoners and workers at the prison have tested positive, and at least six people at Oakdale have died. As of April 10, the Washington Post reported that over 100 prisoners at the facility were under quarantine.7
7 See Kimberly Kindy, Inside the deadliest federal prison, the seeping coronavirus creates fear and danger, Wash. Post (Apr. 10, 2020), available at https://www.washingtonpost.com/national/inside-the-deadliest-federal-prison-theseeping-coronavirus-creates-fear-and-danger/2020/04/09/deeceb6e-75b4-11eaa9bd-9f8b593300d0_story.html
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D. Plaintiffs Must Be Released from ICE Custody Because They Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19. 61. Plaintiffs in this case are all individuals who are especially vulnerable
to serious illness and death if they are infected with COVID-19, but ICE nonetheless insisted on detaining the original plaintiffs, and continues to detain the newly added plaintiffs at York County Prison, Pike County Correctional Facility, and Clinton County Correctional Facility while they await adjudication of their immigration cases.
Original Plaintiffs from March 24, 2020, Complaint 62. Plaintiff Bharatkumar G. Thakker is a 65-year-old citizen of India.
Thakker Decl. at ¶ 1 (ECF 2-3). He was detained by ICE at Pike County Correctional Facility for 27 months before this Court ordered his release. Id. at ¶ 4. Mr. Thakker has significant health issues including high blood pressure, high cholesterol, a history of seizures, and kidney disease that will soon require dialysis. Id. at ¶¶ 6-8. While he had a heart stent put in over ten years ago, he continues to have respiratory issues. He takes 11 medications a day. Id. at ¶ 6. While detained, Mr. Thakker twice has been sent from the prison to the community hospital. Id. at ¶ 10. Mr. Thakker is critically vulnerable to severe illness or death from COVID-19 because of his age and significant health issues. Amon Decl. at ¶ 12 (ECF 2-1).
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63. Plaintiff Adebodun Adebomi Idowu is a 57-year-old man from Nigeria. Idowu Decl. at ¶ 1 (ECF 2-4). He has lived in the United States since 2012 and his wife is a U.S. citizen. Id. at ¶ 2. He is applying for relief under the Convention Against Torture (CAT). Id. Mr. Idowu was detained by ICE at Clinton County Correctional Facility for 17 months before this Court ordered his release. Id. at ¶ 3. Mr. Idowu suffers from Type II diabetes, high blood pressure, and high cholesterol. Id. at ¶ 4. He receives medication for these conditions. Id. He was hospitalized three times while at Clinton County Correctional Center. Id. at 5. Each hospitalization was after Clinton failed to provide him with his diabetes medication. Id. His most recent hospitalization was in December 2019, after he was not provided insulin for two days. Id. at ¶ 8. Mr. Idowu lost consciousness and was taken to the emergency room. Id. He spent two nights at the hospital before being brought back to Clinton County Correctional Facility. Id. Because of his chronic health conditions, Mr. Idowu is critically vulnerable to severe illness or death from COVID-19. Amon Decl. at ¶ 16 (ECF 2-1). He was released on March 31 pursuant to this Court’s order, but he has now been hospitalized for the past week with COVID-19.
64. Plaintiff Courtney Stubbs is a 52-year-old citizen of Jamaica who has lived in the United States since 1991. Stubbs Decl. at ¶ 1 (ECF 2-5). He has a U.S. fiancée and 9-year-old son. Id. at ¶ 2; Arizzi Decl. at 1 (ECF 2-6). Mr. Stubbs was detained by ICE at Pike County Correctional Facility for 9 months before this Court
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ordered his release. Stubbs Decl. at ¶ 7 (ECF 2-5). ICE detained him despite his continued compliance with his Order of Supervision (OSUP), which he was on for 14 years. Id. at ¶¶ 5-6. ICE has been unable to remove him because Jamaica has repeatedly refused to accept him after reviewing his medical records. Id. at ¶ 7; Arizzi Decl. at ¶ 5 (ECF 2-6). He has Type II diabetes and heart stents. Stubbs Decl. at ¶ 4 (ECF 2-5). Mr. Stubbs takes 12 pills a day for his various medical ailments, including medicine so that his body does not reject his kidney transplant. Id. at ¶ 3. Mr. Stubbs is critically vulnerable to severe illness or death from COVID-19 because of his diabetes, kidney condition, and his other serious health issues. Amon Decl. at ¶ 13 (ECF 2-1).
65. Plaintiff Rigoberto Gomez Hernandez is a 52-year-old Mexican national. Gomez Hernandez Decl. at ¶ 1 (ECF 2-7). He was granted non-LPR cancellation of removal on January 16, 2020, but remained detained by ICE at Pike County Prison because the government appealed the decision to the Board of Immigration Appeals (BIA). He was released pursuant to this Court’s order. Mr. Gomez Hernandez has multiple chronic health issues. Id. at ¶ 4. He is diabetic and currently receiving treatment for an ulcer. Id. He is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 18 (ECF 2-1).
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66. Plaintiff Rodolfo Agustín Juarez Juarez is a 21-year-old asylum seeker from El Salvador. Juarez Decl. at ¶ 1 (ECF 2-8). His asylum application is before the Executive Office for Immigration Review (“EOIR”). Id. at ¶ 4. He was detained by ICE at York County Prison for a month before this Court ordered his release. Id. at ¶ 3. Mr. Juarez suffers from diabetes and had a fever, persistent cough, and trouble breathing for the week preceding his release. Id. at ¶¶ 5-6. He was not tested for COVID-19 at York and was told by correctional officers that COVID-19 tests are not available at the facility. Id. at ¶ 11. Mr. Juarez is critically vulnerable to severe illness and death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 15 (ECF 2-1).
67. Plaintiff Meiling Lin is a 45-year-old citizen of China. Lin Decl. at ¶ 1 (ECF 2-9). She was detained by ICE at York County Prison for one year before she was released. Id. She fled China after being forcibly sterilized by the Chinese government and was detained on arrival in the United States. Id. at ¶¶ 2, 5. She is appealing a decision by an Immigration Judge denying her asylum to the Board of Immigration Appeals. Id. at ¶ 2. Ms. Lin has chronic hepatitis B and suffers from severe chronic pain and other medical complications as a result of her forced sterilization surgery. Id. at ¶ 4-8. Ms. Lin is critically vulnerable to severe illness or death from COVID-19 because of her hepatitis B, liver disease and other significant health problems. Amon Decl. at ¶ 14 (ECF 2-1).
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68. Plaintiff Henry Pratt is a 50-year-old citizen of Liberia. Pratt Decl. at ¶ 1 (ECF 2-10). Mr. Pratt fled Liberia 30 years ago and won asylum in the United States and later became a lawful permanent resident. Ex. 48 (Pratt Supp. Decl.) at ¶ 9. He applied for his citizenship and but was unsuccessful and was placed into removal proceedings in February 2017. Id. at ¶ 2. Since 2018, ICE has been unable to obtain travel documents to effectuate his removal. Pratt Supp. Decl. at ¶ 9. Mr. Pratt was detained by ICE for three years before this Court ordered his release from Clinton County Correctional Facility. Id. at ¶ 2. He suffers from Type II diabetes and high blood pressure and receives medication for these conditions. Id. at ¶ 4. Mr. Pratt is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 19 (ECF 2-1).
69. Plaintiff Jean H.C. Augustin is a 34-year-old citizen of Haiti. Augustin Decl. at ¶ 1 (ECF 2-11). He came to the U.S. when he was 15 years old and has been living in the U.S. for the past 18 years. Id. at 2. He is seeking relief under the Convention Against Torture (CAT). Id. at ¶ 3. He was detained by ICE at York County Prison from June of 2018 until this Court ordered his release. Id. at ¶ 2. Mr. Augustin suffers from diabetes, high blood pressure, chronic anemia, nerve issues. Id. at ¶¶ 4-6. Mr. Augustin also has a myriad of health issues stemming from a gunshot injury, with pieces of the bullet still lodged in his body. Id. at ¶ 6. He had a number of medical emergencies while at York County Prison and as a result had to
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be hospitalized multiple times. Id. at ¶¶ 10-11. Mr. Augustin is critically vulnerable to severe illness or death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 14a (ECF 2-1).
70. Plaintiff Mayowa Abayomi Oyediran is a 40-year-old-male asylum seeker from Nigeria. Oyediran Decl. at ¶¶ 1-3 (ECF 2-12). He is awaiting a decision on his asylum case, which was heard by an immigration judge on March 10, 2020. Id. ¶ at 3. Mr. Oyediran was detained by ICE from November 7, 2019, until this Court ordered his release. Mr. Oyediran has severe asthma and has an infection in his lungs. Id. ¶¶ at 4, 7. York County Prison did not provide him with an inhaler or treatment for the lung infection. Id. at ¶¶ 5-6. He also has a history of high blood pressure and high cholesterol. Id. at 8. Mr. Oyediran is critically vulnerable to severe illness and death from COVID-19 because of his severe asthma. Amon Decl. at ¶ 20 (ECF 2-1).
71. Plaintiff Agus Prajoga is a 48-year-old citizen of Indonesia. Prajoga Decl. at ¶ 2 (ECF 2-13). He has a pending Motion to Reopen based on changed country conditions regarding the treatment of Christians in Indonesia. Id. ICE detained Mr. Prajoga and held him at Pike County Prison for 3 months before he was released. Id. Mr. Prajoga has diabetes, cholesterol, high blood pressure, and hepatitis B. Id. at ¶ 3. He takes medication for these conditions. Id. at ¶ 4. Mr. Prajoga is critically vulnerable to severe illness and death from COVID-19 because of his
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diabetes and hepatitis, as well as other health problems. Amon Decl. at ¶ 22 (ECF 2-1).
72. Plaintiff Mansyur is a 41-year-old-male citizen of Indonesia. Mansyur Decl. (ECF 2-14). He is a Christian Indonesian who is seeking relief from removal. Id. at ¶ 2. The Board of Immigration Appeals (BIA) recently granted an Emergency Stay of Removal and his Motion to Reopen before the BIA is pending. Id. Mr. Mansyur was detained by ICE at Pike County Prison for more than 3 months before he was released. Mr. Mansyur has diabetes, thyroid issues, and high blood pressure. Id. at ¶ 3. He receives medication for these medical issues. Id. at ¶ 4. He is critically vulnerable to severe illness and death from COVID-19 because of his diabetes. Amon Decl. at ¶ 21 (ECF 2-1).
73. Plaintiff Catalino Domingo Gomez Lopez is a 51-year-old Guatemalan national. Gomez Lopez Decl. ¶ at 1 (ECF 2-15). He is seeking relief under the Convention Against Torture (CAT). Id. His case is pending before the Third Circuit Court of Appeals. He was detained by ICE at York County Prison from November 2018 until this Court ordered his release. Id. at ¶ 3. Mr. Gomez Lopez had the flu four times during his detention at York. Id. at ¶ 5. His most recent illness with the flu was in mid-February 2020; he was ill for four weeks, during which time he had a fever and a persistent cough. Id. He had trouble sleeping because of his cough, which was so severe that he coughed blood. Id. Mr. Gomez Lopez is critically
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vulnerable to severe illness and death from COVID-19 because of his persistent viral infections. Amon Decl. at ¶ 16a (ECF 2-1).
74. Plaintiff Dexter Anthony Hillocks is a 54-year-old lawful permanent resident from Trinidad and Tobago who has lived in the United States since 2000. Hillocks Decl. at ¶ 2 (ECF 2-16). Despite a recent Third Circuit Court of Appeals decision that reversed and vacated his order of removal, ICE continued to detain him at Pike County Correctional Facility pending further proceedings until this Court ordered his release. Id. at ¶ 4. At that point he had been detained for almost five years. Id. at ¶ 2. Mr. Hillocks has several serious health problems. Seven months ago, he was diagnosed with leukemia. Id. at ¶ 6. He does not yet know the full extent of his cancer diagnosis. Id. He also has diabetes, high blood pressure, and high cholesterol, for which he takes medication, as well as anemia. Id. at ¶¶ 5, 7-8. Mr. Hillocks is critically vulnerable to severe illness and death from COVID-19 because of his significant health problems. Amon Decl. at ¶ 17 (ECF 2-1).
Newly Added Plaintiffs 75. Plaintiff Fazal Ghaffar is a 70-year-old man from Pakistan who has lived in the United States for more than 20 years. Ex. 36 (Ghaffar Decl.) at ¶¶ 1-2. He is married to a lawful permanent resident. Id. at ¶ 3. Their son is a U.S. citizen who works as a registered nurse. Id. For eight years, he complied with his Order of Supervision and reported to ICE. After the filing of his U-visa-nonimmigrant-status
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application, which is still pending before the USCIS, he began arrangements to return to Pakistan but was unable to obtain travel documents since ICE had his passport. Id. at ¶ 2. ICE detained him prior to a check-in and he has been detained at York County Prison since January 2020. Id. On March 25, 2020, his immigration lawyer asked ICE to release him due to his age, but ICE has not responded. Id.
76. Mr. Ghaffar has had a persistent cough for several months. Id. at ¶ 5. He has low blood pressure, which causes him fatigue, he has balance problems and must steady himself with a wall. Id. He has bladder problems and has a frequent need to urinate, even at night. Id. He has some internal bleeding and was told he needed a colonoscopy but he has not been given one. Id. His advanced age places him at a high risk for severe disease and death if he contracts COVID-19. AmonNew Decl. at ¶ 11.
77. Plaintiff Juan Antonio Gumbs Navarro is a 50-year-old man from the Dominican Republic who has lived in the United States since he was sixteen years old. Ex. 37 (Gumbs Navarro Decl.) at ¶ 2. He has been a lawful permanent resident for 25 years. Id. at ¶ 2. His application for Lawful Permanent Resident Cancellation of Removal is pending before the BIA. Id. at ¶ 4. His partner gave birth to their daughter on April 11, 2020. Id. at ¶ 8. They have another daughter together, and Mr. Gumbs Navarro also has four other U.S. citizen children. Id. at ¶ 9. He has been detained by ICE at York County Prison since September 2019. Id. at ¶ 3.
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78. Mr. Gumbs Navarro suffers from diabetes, high blood pressure, and high cholesterol, for which he takes many medications Id. at ¶¶ 10-11. His medical conditions place him at high risk of severe illness or death if he contracts COVID19. Amon-New Decl. at ¶ 12.
79. Plaintiff T.S.N. is a 33-year-old woman from the Dominican Republic who has lived in the United States for nearly 17 years. Ex. 38 (T.S.N. Decl.) at ¶ 2. She recently retained new immigration counsel to represent her in her removal case. Id. at ¶ 4. She has a two-year-old son, who is a U.S. citizen. Id. at ¶¶ 2, 6. T.S.N. has been detained by ICE at York County Prison since July 2019.
80. Prior to her detention, T.S.N. had been hospitalized on several occasions due to severe asthma attacks. Id. at ¶ 10. She used an inhaler, daily medication, and a nebulizer machine to treat her asthma. Id. at ¶ 8. Since her detention, she has not received daily medication for her asthma. Id. at ¶ 9. Instead, she was told she would receive treatment if it became necessary. Id. T.S.N. is also HIV positive. Id. at ¶¶ 7, 11. Prior to her detention, she went for bloodwork every two months. Id. In the ten months of her detention, T.S.N. has not been taken to the hospital for blood work. Id. Her medical conditions place her at high risk of severe illness or death if she contracts COVID-19. Amon-New Decl. at ¶ 13.
81. Plaintiff Robinson Agustin Yoc is a 31-year-old man from Guatemala who has lived in the United States for approximately seventeen years. Ex. 39
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(Augustin Yoc Decl.) at ¶ 2. He qualified for free representation through the National Qualified Representatives Program, which is a federally funded program that provides free representation to immigrants who are determined to be incompetent to represent themselves in their removal proceedings. Mr. Agustin Yoc has been detained by ICE since July 8, 2019. Id. For his first of month detention, he was at Pike; then he was transferred to York County Prison, where he remains. Id. at ¶ 2.
82. Mr. Agustin Yoc suffers from asthma and had a traumatic brain injury in March 2019. Id. at ¶ 5. Additionally, he suffers from post-traumatic stress disorder (PTSD), amnesia, anxiety, and depression. Id. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon-New Decl. at ¶ 14.
83. Plaintiff Andrew Davis is a 37-year-old man from Jamaica who has lived in the United States for over ten years. Ex. 40 (Davis Decl.) at ¶¶ 1-2. He is married with two children—a U.S. citizen son and a lawful permanent resident daughter. Id. He is seeking Lawful Permanent Resident Cancellation of Removal and asylum, which will soon be before the Board of Immigration Appeals. Id. at ¶ 3. ICE detained him on his way to a probation check-in for a marijuana offense. Id. at ¶ 4. He has been detained since October 2019, first at Pike, and since March 2020, at York County Prison. Id.
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84. Mr. Davis suffers from diabetes, high blood pressure, and high cholesterol. Id. at ¶ 7. Prior to his detention, he treated his diabetes with insulin and a pill. Id. at ¶ 8. Since being detained, he has only received insulin when his blood sugar is low. Id. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon-New Decl. at ¶ 15.
85. Plaintiff Abdul Mohammed is a 22-year-old man from Ghana. Ex. 41 (Mohammed Decl.) at ¶ 1. He is eligible to adjust his status through his U.S. citizen wife. Id. at ¶ 2. He entered the United States on a student visa and had an athletic scholarship to play collegiate soccer. Id. After he injured his knee playing soccer, he sought treatment in New York and transferred to another school but fell out of status. Id. He has been detained at the York County Prison since August 22, 2019. Id. at ¶ 3.
86. Mr. Mohammed has suffered from asthma since childhood. Id. at ¶ 4. As a soccer player, he took special care to have his inhaler accessible in the event of an asthma attack, yet York has not yet provided him with an inhaler despite his repeated requests. Id. Recently, he has experienced breathing issues and sought medical attention. Id. The nurse told him that she tried to order him an inhaler but it was out of stock. Id. His asthma puts him at high risk of severe illness or death if he contracts COVID-19. Amon-New Decl. at ¶ 16.
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87. Plaintiff Mikhail Viktorovich Goloverya is a 36-year-old man who was born in the U.S.S.R region that is now the country of Kazakhstan. Ex. 42 (Goloverya Decl.) at ¶ 1. He has lived in the United States for 22 years. Id. at ¶ 2. He has been detained by ICE since November 2019 at the Pike County Correctional Facility. Id. at ¶ 3. He was ordered removed in February 2020, but because he is stateless, ICE has been unable to deport him. Id. at ¶ 1-2.
88. Mr. Goloverya suffers from high blood pressure. Id. at ¶ 5. He takes medication for this, along with medication for his anxiety and depression. Id. at ¶¶ 5, 7. Despite his medication, he still suffers from panic attacks, which can be severe. Id. He recently had a panic attack where he almost passed out. Id. Mr. Goloverya has also recently experienced shortness of breath and chest pain but has been told it is due to his panic attacks. Id. at 8. His high blood pressure places him at heightened risk of complications if he contracts COVID-19. Amon-New Decl. at ¶ 17.
89. Plaintiff Oleg Zhuiko is a 53-year-old man who has lived in the United States for 23 years. Ex. 43 (Zhuiko Decl.) at ¶¶ 1-2. He lost his citizenship from Kazakhstan and is stateless. Id. He has two U.S. citizen children (ages 14 and 18). Id. He has been detained by ICE at Pike County Correctional Facility for 16 months. Id. at ¶ 3. He has a forthcoming appeal before the U.S. Court of Appeals for the Third Circuit to reopen his immigration proceedings. Id. at ¶ 2.
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90. Mr. Zhuiko was diagnosed with high blood pressure three years ago, for which he takes daily medication. Id. at ¶ 4. He has also complained of recurring chest pains and has had bronchitis multiple times. Id. at ¶ 5. His high blood pressure places him at a heightened risk of complications if he contracts COVID-19. AmonNew Decl. at ¶ 18.
91. Plaintiff Stephen Brown is a 56-year-old man from Jamaica who has lived in the United States for 39 years. Ex. 44 (Brown Decl.) at ¶ 1. At the age of 17, he immigrated to the United States. Id. at ¶ 3. Six months later he enlisted in the Army, for which he received a general discharge under honorable conditions. Id. He and his wife have been together for 33 years (and married for 26 years). Id. at ¶ 4. Together, they raised five children, as well as a nephew, who is now a police officer. Id. He has been detained by ICE at Clinton County Correctional Facility since March 4, 2020. Id. His case is before an immigration judge. Id. at ¶ 6.
92. Mr. Brown suffers from high blood pressure and borderline diabetes, has high cholesterol, and is a cancer survivor. Id. at ¶¶ 7-8. Recently, he began experiencing symptoms similar to those that led to his previous cancer diagnosis. Id. at ¶ 8. He is awaiting test results and an appointment with a specialist, which has not yet been scheduled. Id. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon-New Decl. at ¶ 19.
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93. Plaintiff D.F. is a 42-year-old man from Jamaica who has lived in the United States since 2007. Ex. 45 (D.F. Decl.) at ¶ 3. He won asylum and later became a lawful permanent resident. Id. D.F has been detained by ICE for 10 months (since June 7, 2019) at Clinton County Correctional Facility. Id. at ¶ 4. While he is now subject to a final order of removal, Jamaica will not accept him for removal due to his serious health conditions. Id.
94. D.F. is HIV positive. While he has been taking medication for his HIV since 2008, the medications have caused him kidney damage. Last month, his glomerular filtration rate (GFR) was 56, which is classified as moderate to severe kidney damage. Id. at ¶ 6. Prior to his detention, his HIV medication had also impacted his kidney health, which is why his doctor switched him to a different medication. Id. At his arrival at the jail, he was told that his current medication was too expensive, and he was prescribed Tivicay. Id. at ¶ 5. D.F’s medical conditions place him at high risk of severe illness or death if he contracts COVID-19. AmonNew Decl. at ¶ 20.
95. Plaintiff Ajarhi Sazimbi Roberts is a 27-year-old man from Jamaica who has lived in the United States since he was 10-years-old. Ex. 46 (Roberts Decl.) at ¶ 1. He is a lawful permanent resident who was recently placed into removal proceedings. Id. at ¶¶ 1, 4. He has been detained by ICE at Clinton County Correctional Facility since March 4, 2020. Id. at ¶ 4.
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96. Mr. Roberts has suffered from asthma since he was a child. He also has high blood pressure for which he takes daily medication. Id. at ¶ 3. Mr. Roberts was recently evaluated for his asthma and was told that he would be prescribed an inhaler. Id. at ¶ 5. His asthma places him at high risk of severe illness or death if he contracts COVID-19. Amon-New Decl. at ¶ 21.
E. ICE Continues to Expose Plaintiffs to Dangerous Conditions of Confinement Despite Being Warned of These Dangers 97. Public health measures across the country, including in Pennsylvania,
demonstrate the widespread recognition that the only clinically recommended course of action to protect individuals who have medical conditions that make them vulnerable to serious illness or death from COVID-19 is to practice social distancing and increased hygiene. Only these practices mitigate the risk of contracting this novel virus that has no cure. Golob Decl. at ¶ 10 (ECF 2-2); Amon-New Decl. at ¶¶ 6, 24.
98. Social distancing is the primary means to limit disease transmission. Amon-New Decl. at ¶ 24. CDC guidance for detention centers and prisons specifically recommends implementing social distancing strategies that increase the physical space between people, “ideally 6 feet between all individuals, regardless of the presence of symptoms.” Id. at ¶ 31.
99. While ICE’s guidance identifies social distancing as a recommended preventative measure, it concedes that facilities may not be able to follow the CDC’s
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guidance. Moreover, ICE only directs implementation of distancing practices where “possible” or “practicable.” Id. at ¶¶ 35; 35 (c). This failure to mandate social distancing renders any plan for risk mitigation ineffective. Id. at ¶ 35(c). None of the ICE facilities at issue here are following CDC guidance on social distancing, putting the lives of everyone, and especially those who are over 45 or have one of the specified pre-existing medical conditions, in jeopardy. Id. at ¶ 56. Plaintiffs are forced to sleep in crowded dorms that do not allow six feet of distance from each other, Gumbs Navarro Decl. at ¶ 16; Davis Decl. at ¶12 D.F at ¶ 10,8 or are housed three to an eight-foot-by-twelve-foot cell, with two people sharing a bunk bed, and with a toilet and sink shared between all three. Zhuiko Decl. at ¶ 12; Goloverya Decl. at ¶ 10.9 None of the dorms has been depopulated to a degree that individuals are able to maintain at least six feet of distance from others, nor have any of the Plaintiffs been isolated to a single cell. Amon-New Decl. at ¶ 35(d).
100. By confining Plaintiffs and others similarly situated in these conditions, Defendants are subjecting Plaintiffs to exposure as they are confined to small spaces with many other people and unable to practice social distancing, which is the primary means of protection against COVID-19. Id. at ¶¶ 24, 35(c).
8 See also Pratt Decl. at ¶ 7 (ECF 2-10); Idowu Decl. at ¶ 11 (ECF 2-4); Augustin Decl. at ¶16. (ECF 2-11). 9 See also Thakker Decl. at ¶ 11 (ECF 2-3).
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101. CDC guidance emphasizes that there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff, new admissions, and transfer of persons from other facilities. Amon-New Decl. at ¶ 55. The ICE action plan only provides for verbal screening and temperature checks. But asymptomatic transmission of the virus means that monitoring staff or detainees for fever is inadequate for identifying all who may be infected, and thereby ineffective at preventing transmission. Id. at ¶¶ 37(a), (d). Effective screening would require temperature checks or isolation, but tests are not being routinely conducted, nor can staff be isolated each time they enter the facility. Id.
102. Defendants also do not have the capacity to implement safe quarantines for newly arrived individuals. Given the degree of infectious spread in Pennsylvania, a large share of newly arrived people will have had recent contact with an infected person or come from an area of community spread. Id. at ¶ 37(a). Housing newly arrived pre-symptomatic and asymptomatic individuals in any housing configuration short of single-celling will facilitate transmission. Id. at ¶ 37(c). Defendants neither claim to be isolating new arrivals in this way, nor do they have the physical infrastructure or personnel to do so. Id. at ¶ 37(b).
103. Defendants also have failed to implement ICE’s own alleged isolation protocol. The protocol states: “ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection
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isolation room specifically designed to contain biological agents, such as COVID19.” Id. at ¶ 40(a). Plaintiffs’ declarations make clear that Defendants are not following these procedures. Instead, individuals with symptoms are left in common dorm spaces for days, and close contacts are neither tested nor isolated. T.S.N Decl. at ¶ ¶ 22-24.
104. The respective detention centers’ physical-infrastructure limitations and Defendants’ lack of staffing capacity make compliance with their own guidance impossible. Amon-New Decl. at ¶ 40(a). Given the rate of spread in detention facilities, there will be many more people with COVID-19 symptoms than there are isolation rooms in the facilities. Id. With insufficient infrastructure ICE will not be able to isolate symptomatic individuals and will therefore expose non-infected individuals to infected individuals. Id. at ¶¶ 40(a), (b).
105. Recently issued ICE guidance contends that facilities can mitigate this risk of infectious spread by “cohorting” groups of noncitizens with each other, and away from other detainees. The CDC recognizes cohorting as a measure of last resort in detention facilities. Moreover, the CDC cautions that people with confirmed diagnoses should not be cohorted with those who have suspected cases of COVID-19 or who have had close contact with a particular COVID-19 case. AmonNew Decl. at ¶ 41(b). With little guidance from ICE on when to test for COVID, the number of confirmed cases will lag behind actual infection. Id. at ¶ 38(a). Because
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Defendants cannot isolate symptomatic individuals and fail to conduct widespread testing, infected individuals who do not yet qualify as “confirmed cases” remain in cohorts where they will facilitate transmission to others.
106. The cohorting policy will also fail to prevent the spread of the virus to Plaintiffs and class members given the characteristics of the cohorts in which people are confined. As part of its policy, ICE cohorts large groups of people who have had close contact with an infected person, but without testing them to confirm transmission, and then houses them together in tight quarters where social distancing is impossible. At Pike, Defendants cohort people in small double or triple-celled units; at York, Defendants cohort 40 to 60 people in a single room even after exposure to COVID-19; and at Clinton, Defendants cohort 70 people in dormitories. Amon-New Decl. at ¶¶ 40(c), 41(f); T.S.N. Decl. at ¶¶ 15, 22. Rather than slowing the virus’s spread, these cohorts threaten to expose many more individuals to the virus. Amon-New Decl. at ¶ 41(f).
107. ICE’s mask guidance also falls short. Face masks must be properly cleaned and worn in order to prevent the spread of infection; single-use masks should not be reused. Id. at ¶ 41(d). Yet Plaintiffs report that they were told to reuse singleuse masks, sometimes for up to two weeks. Id. at ¶ 43(b). The CDC also recognizes that masks are at best the lesser of two evils where contact is necessary. Even masks,
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and especially the cloth masks Plaintiffs wear for days on end, are no substitute for social distancing. Id. at ¶¶ 24, 43.
108. Defendants also expose Plaintiffs to unsanitary conditions that increase the risk of infection and spread. Plaintiffs must use common toilets and showers. With only one shower for eight to ten people at York, Davis Decl. at ¶ 14, three showers for 20 people at Pike, Goloverya Decl. at ¶ 12, and one for about 18 people at Clinton, Brown Decl. at ¶ 14, Defendants force Plaintiffs into repeated contact with potentially infected surfaces with little evidence of sanitization between use. Amon-New at ¶ 42, 42(a), 42(b). Plaintiffs have no control over their soap rations or access to other sanitization products, which are often in short supply. Davis Decl. at ¶ 16; Zhuiko Decl. at ¶ 11; Roberts Decl. at ¶ 11. These realities contradict ICE’s most recent guidance, which states that soap dispensers and paper towels are “routinely checked and available for use,” and that “liquid soap, running water… disposable paper towels, and no touch receptacles” are all readily available. AmonNew Decl. at ¶ 42(a).
109. Defendants have been aware of the serious hygiene issues at their facilities. Stakeholders sent a detailed letter to Defendants Flores-Lund and Doll in July 2019 detailing various deficiencies in hygiene, sanitation, and medical care at York County Prison. See Ruiz Decl. at ¶ 3 (ECF 2-19). To date, York Country Prison has not implemented any changes. Id. at ¶ 12.
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110. On March 13, 2020, as infection rates began to rise in Pennsylvania at an alarming rate, the ACLU of Pennsylvania sent a letter to Defendant Flores-Lund, and other agency officials, alerting them to the high risk of COVID-19 infection in detention facilities and the dangerous health outcomes likely for vulnerable individuals. ACLU Letter March 13, 2020 (ECF 2-20). Neither Ms. Flores-Lund nor any other agency official has responded to the letter.
111. CDC guidance recognizes that incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced. Amon-New Decl. at ¶ 55. All of the risks are present here, where Plaintiffs cannot practice social distancing, share confined common spaces and touch common surfaces, and where new individuals and staff come into the facility each day.
CLASS ACTION ALLEGATIONS 112. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure
23(a) and 23(b)(2) on behalf of themselves and all other persons similarly situated. The proposed class is defined as follows: All noncitizens who are now, or will in the future be, detained in ICE custody in the Middle District of Pennsylvania, and who have been diagnosed with, or are receiving treatment for, a preexisting medical condition and/or are over the age of 45. Those preexisting medical conditions are:
• Chronic kidney disease (including receiving dialysis); • Chronic liver disease (including cirrhosis and chronic hepatitis); • Endocrine disorders (including diabetes mellitus);
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• Compromised immune system (immunosuppression) (e.g., receiving treatment such as chemotherapy or radiation, received an organ or bone marrow transplant and is taking immunosuppressant medications, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS);
• Metabolic disorders (including inherited metabolic disorders and mitochondrial disorders);
• Heart disease (including congenital heart disease, congestive heart failure and coronary artery disease);
• Lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen;
• Neurological and neurologic and neurodevelopment conditions (including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury:
• Current or recent pregnancy (in the last two weeks); • Body mass index (BMI) greater than 40; and • Hypertension.
113. The class is so numerous that joinder of all members is impracticable.
Upon information and belief, Pike, York, and Clinton hold a total of more than 400
people in ICE custody, and all facilities continue to admit new detainees. A
significant proportion of these noncitizens have serious medical conditions and/or
are over the age of 45. Indeed, a total of 35 noncitizens were the original Plaintiffs
in just this case and Hope. On information and belief, in addition to the 11 new
plaintiffs, there are dozens more who are detained at the three ICE facilities who fit
the class definition. The class is also fluid as individuals are regularly brought into
the facilities as detainees.
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114. The lawfulness of the proposed class members’ detention presents common questions of fact and law. All class members are similarly situated as a result of their increased risk of serious medical complications or death from contracting COVID-19. All class members are similarly situated in that conditions at the three ICE facilities make social distancing and other protective measures impossible.
115. The claims of the named Plaintiffs are typical of the claims of the proposed class. All Plaintiffs face a grave risk of serious illness or death from COVID-19 due to their age and/or a preexisting medical condition, and raise the same due process challenge to their detention. Plaintiffs’ legal challenges to their detention are identical to those of the proposed class.
116. Plaintiffs are adequate representatives because they seek the same relief as the other members of the class: declaratory relief that their ongoing custody violates the Due Process Clause, and injunctive relief and a writ of habeas corpus requiring their release. Plaintiffs do not have any interests adverse to those of the class as a whole.
117. The proposed class would be represented by counsel from the ACLU of Pennsylvania, the ACLU Foundation, and Dechert LLP. Counsel have extensive experience litigating class action lawsuits, including lawsuits on behalf of incarcerated people generally, and immigration detainees in particular.
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118. Defendants have acted on grounds generally applicable to the class by continuing to detain them in circumstances where they are likely to suffer serious medical complications and/or die from COVID-19. Thus, injunctive and declaratory relief is appropriate with respect to the class as a whole.
LEGAL FRAMEWORK A. Immigrant Detainees are Entitled to Constitutional Due Process
Protections Against Exposure to Infectious Disease. 119. Immigrant detainees, even those with prior criminal convictions, are civil detainees entitled to the same Fifth and Fourteenth Amendment due process protections as any other pretrial detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); E. D. v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019).10 120. Due process rights for civil detainees mean that they are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”).
10 The Fifth Amendment requires the federal Defendants to provide due process protections to Plaintiffs. The Fourteenth Amendment requires the state Defendants to provide the same due process protections.
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121. “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” Sharkey, 928 F.3d at 307 (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). Put differently, to assess whether a condition constitutes impermissible punishment, “[w]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232. Conditions must be assessed in their totality. Id. at 233.
122. The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it “fails to provide for [the] basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” -- of those in custody. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989); see also Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999, 1008 (3d Cir. 1983) (explaining that conditions are cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” such as the “necessity” of “habitable shelter,” as measured under “contemporary standards of decency”).
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123. Courts in this Circuit have repeatedly found such “unsanitary, unsafe, or otherwise inadequate conditions” sufficient to state a Due Process claim. See, e.g., Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016) (being “forced to live in a 7’X10’ cell with two other inmates”, sleep[ing] on a plastic ‘boat’ next to the cell’s toilet [which] is exposed to urine and fecal matter[,]” and “nearly contin[uous] lockdowns” raise a colorable due process conditions claim); Grohs v. Lanigan, No. 16-7083, 2019 WL 150061, at *11 (D.N.J. Apr. 5, 2019) (allegations of exposure to “extreme heat combined with lack of potable water, as well as generally unsanitary conditions” sufficient to state a conditions-ofconfinement claim under the Fourteenth Amendment).
124. Conditions that would violate the Eighth Amendment are more than enough to also violate a civil detainee’s due process rights. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).
125. To prevail on a claim that conditions of confinement violate the Eighth Amendment, Plaintiffs must meet two requirements: (1) the deprivation alleged must be, objectively, “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind”—that is, deliberate indifference to the detainee’s
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health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
126. The Supreme Court has recognized that it violates the Eighth Amendment to crowd prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Plaintiffs can establish deliberate indifference based on circumstantial evidence that the risk is obvious. The obviousness of the risk the Plaintiffs face, by itself, is enough to allow a factfinder to conclude that Defendants know of the risk. Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). See also Farmer, 511 U.S. at 842 (explaining that “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”).
127. Due process rights may be violated even before a detainee contracts a disease. Because the Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety[,]’” Helling v. McKinney, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200), “[i]t would be odd to deny an
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injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them[.]” Id.
B. Defendants Are Violating Plaintiffs’ Constitutional Due Process Rights. 128. The conditions at the ICE Facilities described above, supra ¶¶ 43-54
demonstrate that Plaintiffs’ constitutional due process rights are being violated. Keeping vulnerable Plaintiffs detained in such close proximity to one another and without the sanitation necessary to combat the spread of the virus serves no legitimate purpose. Nor is detention under these circumstances rationally related to the enforcement of immigration laws.
129. Plaintiffs’ due process rights are also being violated because their conditions of confinement place them at serious risk of being infected with COVID19 and Defendants are being deliberately indifferent to this critical safety concern.
130. There is no question that COVID-19 poses a serious risk to Plaintiffs. COVID-19 is highly contagious and can cause severe illness and death. See supra., Statement of Facts § A. Plaintiffs are at a heightened risk because of their age and/or underlying health conditions. See supra ¶¶ 62-74, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, and 96.
131. Defendants are aware of and have completely disregarded the serious risk that COVID-19 poses to Plaintiffs. See supra ¶¶ 109-110.
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132. The risk that COVID-19 poses to Plaintiffs is also obvious, including
to Defendants. Medical experts for the Department of Homeland Security have
identified the risk of COVID-19 spreading to ICE detention centers.11 John
Sandweg, a former acting director of ICE, has written publicly about the need to
release nonviolent detainees because ICE detention centers “are extremely
susceptible to outbreaks of infectious diseases” and “preventing the virus from being
introduced into these facilities is impossible.”12 Prisons and jails around the country
are already releasing non-violent detainees because the risk of contagion is
overwhelming.13
11 See March 19, 2020 letter from Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH to House and Senate Committees on Homeland Security, available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020-Letter-to-Congress.pdf. 12 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent Detainees,” The Atlantic (March 22, 2020), available at https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/. 13 See, e.g., Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020) (ordering release of most county jail detainees), available at https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF; United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (concluding that the “unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic” constituted compelling circumstances to adjust a Defendant’s bail conditions and release him, even though there was “not yet a known outbreak among the jail and prison populations” when the order was issued). On April 10, 2020, Governor Wolf ordered Department of Corrections officials to establish a Temporary Program to Reprieve Sentences of Incarceration to begin the process of releasing vulnerable and non-violent inmates from state prisons. See Governor Tom Wolf Newsroom, Gov. Wolf: Department of Corrections to Establish Temporary Program to Reprieve Sentences of Incarceration, April 10, 2020 Press release, https://www.governor.pa.gov/newsroom/gov-wolf-department-of-
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133. The circumstances of this case demonstrate that release is the only means to ensure compliance with Plaintiffs’ due process rights. Public health experts make clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are imperative to protect individuals with underlying medical conditions. See supra ¶¶ 97-108. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
C. ICE Regularly Uses Its Authority To Release People Detained In Custody Because They Suffer Serious Medical Conditions. 134. ICE has a longstanding practice of exercising prosecutorial discretion,
which demonstrates that the agency understands that its authority extends to— and includes—humanitarian releases from custody on medical grounds. The agency has routinely exercised its authority to release particularly vulnerable detainees. As former Deputy Assistant Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-Strait explains, “ICE has exercised and still
corrections-to-establish-temporary-program-to-reprieve-sentences-ofincarceration/. This program could result in release of up to 1,800 individuals. See Jeremy Roebuck, Erin McCarthy, and Anna Orso, Thousand of state prison inmates in Pa and N.J. are now eligible for temporary release as governors act to avert coronavirus spread, The Philadelphia Inquirer (Apr. 10, 2020), available at https://www.inquirer.com/health/coronavirus/coronavirus-prisoners-pennsylvanianew-jersey-governor-wolf-murphy-20200410.html.
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exercises discretion for purposes of releasing individuals with serious medical conditions from detention.” See Lorenzen-Strait Decl. at ¶ 3 (ECF 2-17).
135. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A governmentcontracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings. See id. at ¶ 15.
136. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating against detention. See id. at ¶¶ 10-14. For example, under 8 C.F.R. § 212.5(b)(1), ICE has routinely exercised its discretion to release particularly vulnerable detainees. Id. at 4-11.
137. While ICE officers may be exercising discretion less frequently in recent years, the statutory and regulatory authority underlying the use of
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prosecutorial discretion in custodial determinations remains in effect. See LorenzenStrait Decl. at ¶ 13 (ECF 2-17).
138. Moreover, ICE has released individuals on medical grounds regardless of the statutory basis for a noncitizen’s detention. See id. at ¶ 11.
139. Here, the Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that ICE release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has a longstanding practice of releasing immigrants on medical grounds indicates that the remedy Plaintiffs request is neither unprecedented nor unmanageable for the agency.
D. This Court Has Authority to Order Plaintiffs’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here. 140. Courts have broad power to fashion equitable remedies to address
constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
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141. The circumstances of this case make clear that release is the only means to ensure compliance with the Fifth Amendment’s prohibition against punitive detention. Plaintiffs’ medical conditions put them at grave risk of severe illness or death if they contract COVID-19. Public health experts agree that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with pre-existing medical conditions. Yet Defendants are detaining vulnerable Plaintiffs under conditions where they are forced into close contact with many other detainees and officers. By continuing detention in these circumstances, Defendants are subjecting Plaintiffs to unreasonable harm. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
CLAIMS FOR RELIEF COUNT ONE
Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
142. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it fails to satisfy its affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the Constitution when it fails to provide for the basic human needs—e.g., food, clothing, shelter, medical care, and
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reasonable safety — of those in its custody. The federal government also violates substantive due process when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment.
143. By detaining Plaintiffs in the ICE Facilities, Defendants are subjecting Plaintiffs to a heightened risk of contracting COVID-19, for which there is no vaccine and no cure. Plaintiffs are persons who are particularly vulnerable to serious medical complications from COVID-19 infection and are at substantial risk of serious illness and death as long as they are held in detention. By subjecting Plaintiffs to this risk Defendants are imposing detention conditions that amount to punishment and fail to ensure safety and health, in violation of Plaintiffs’ due process rights.
144. Likewise, Defendants’ continued detention of Plaintiffs at the ICE Facilities is deliberately indifferent to Plaintiffs’ health and safety because only releasing Plaintiffs from custody can adequately protect them from COVID-19. Defendants are both aware of the serious risk posed by COVID-19 and are failing to take the only action that can respond to Plaintiffs’ medical needs, which is to release them.
COUNT TWO Defendants’ Detention of Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya,
Zhuiko, and D.F. Where Removal Is Not Significantly Likely in the Foreseeable Future Violates 8 U.S.C. § 1231(a)(6)
145. Due process requires that immigration detention bear a reasonable relation to its purpose. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The
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principal purpose of the statute that authorizes post-final-order detention, 8 U.S.C. § 1231, is to effectuate removal. Where removal cannot be effectuated, detention is not reasonably related to its purpose, would violate due process, and is not statutorily authorized.
146. Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F. have met their burden of establishing good reason to believe that their removal is not reasonably likely in the foreseeable future. Defendants have not rebutted this showing, as they have provided no evidence that their removal is reasonably foreseeable. Absent such evidence, the detention of Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F. is not authorized by statute and they are entitled to immediate release under orders of supervision.
PRAYER FOR RELIEF WHEREFORE Plaintiffs request that the Court grant the following relief:
a. Certify, pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the following Plaintiff class: All noncitizens who are now, or will in the future be, detained in ICE custody in the Middle District of Pennsylvania, and who have been diagnosed with, or are receiving treatment for, a preexisting medical condition and/or are over the age of 45.
b. Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g); c. Issue a declaration that Defendants’ continued detention in civil immigration
custody of individuals at increased risk for severe illness, including all 62

Case 1:20-cv-00480-JEJ Document 62 Filed 04/17/20 Page 64 of 66
people ages 45 and older and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause; d. Issue injunctive relief ordering Defendants to release Plaintiffs and those similarly situated to them, with appropriate precautionary public health measures, on the grounds that their continued detention violates their constitutional due process rights; e. Issue a writ of habeas corpus ordering Defendants to release Plaintiffs and those similarly situated to them, with appropriate precautionary public health measures, on the grounds that their continued detention violates their constitutional due process rights; f. Declare that for Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F., there is good reason to believe that there is no significant likelihood of their removal in the reasonably foreseeable future, and that Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F. must be released unless the government can rebut that showing; g. Find that Defendants have failed to rebut the showing of Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F that their removal is not significantly likely in the reasonably foreseeable future; order the government immediately to release Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko,
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and D.F from detention under orders of supervision; and enjoin Defendants from redetaining Plaintiffs Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F unless or until Defendants can establish that their removal is significantly likely in the reasonably foreseeable future; h. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504, and on any other basis justified under law; and i. Grant any other and further relief that this Court may deem just and proper.

Dated: April 17, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David C. Fathi (WA 24893)*** Eunice H. Cho (WA 53711)*** AMERICAN CIVIL LIBERTIES UNION

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org

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Case 1:20-cv-00480-JEJ Document 62 Filed 04/17/20 Page 66 of 66

FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Cecillia Wang (CA 187782)** Stephen Kang (CA 292280)** AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0774 E: cwang@aclu.org E: skang@aclu.org

E: enyborg-burch@aclupa.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS' RIGHTS
PROJECT
125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

*Admitted pro hac vice **Petition for permission to file pro hac vice forthcoming

***Admitted pro hac vice; not admitted in DC; practice limited to federal courts

65

 
 Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

: 1:20-cv-480

ADEBODUN ADEBOMI IDOWU

:

COURTNEY STUBS

:

RIGOBERTO GOMEZ-HERNANDEZ

:

RODOLFO AUGUSTIN JUAREZ-JUAREZ : Hon. John E. Jones III

HENRY PRATT

:

JEAN H. C. AUGUSTIN

:

MAYOWA ABAYOMI OYERDIRAN

:

CATALINO DOMINGO GOMEZ-LOPEZ

:

DEXTER ANTHONY HILLOCKS

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity as

:

Warden of York County Prison, et al.,

:

Respondents-Defendants.

:

MEMORANDUM AND ORDER April 27, 2020
Pending before the Court is the Motion for Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean Herdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter

1

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 2 of 32

Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties, (Docs.12 and 35), and the Court has received numerous Notices of supplemental authority, as well as factual updates from the parties (Docs. 54, 58, 59, 61, 75, 76, 80, 81, 85, and 87).2 Thus, this matter is ripe for our review.
For the reasons that follow, the Petitioners’ Motion for a Preliminary Injunction shall be granted in part and denied in part.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY3 On March 31, 2020, we granted the Petitioners’ Motion for Temporary
Restraining Order and ordered that they be immediately released from immigration detention. (Doc. 47). Thereafter, on April 13, 2020, we extended the TRO for a period of 14 days, thereby continuing the Petitioners’ release, subject to certain

1

Three of the Petitioners initially named in this action, Meiling Lin, Agus Prajoga, and

Mansyur were released from detention prior to our grant of the TRO, thus this Motion is moot as

to them. Further, on April 17, 2020, Petitioners filed an Amended Complaint (Doc. 62) adding

eleven (11) individual petitioners to this action as well as presenting putative class claims.

Because the record before us only encompasses evidence concerning the initial Petitioners, our

decision herein is appropriately cabined to the original ten (10) Petitioners released by our TRO

dated March 31, 2020.

2

As noted in our April 13, 2020 Order, the parties had previously agreed that this matter

shall be decided on the record filings and thus a hearing was not necessary. The parties were

given leave to supplement the record and did so.

3

As the parties are aware, in our Memorandum and Order granting the TRO, we wrote

extensively on the factual background underpinning this matter. To be sure, there are portions of

the instant Memorandum and Opinion that mirror our prior recitation of the record. However, at

the risk of repeating ourselves, we find it appropriate to write comprehensively on the

Petitioners’ request for preliminary injunctive relief, which has caused us to borrow portions of

our prior decision.

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 3 of 32
conditions. (Doc. 60). At this juncture, we must decide whether to convert the TRO into a preliminary injunction, which would permit the continued release of Petitioners.
Petitioners are a diverse group of individuals from around the world who are being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, (“YCP”), Clinton County Correctional Facility, (“CCCF”), and Pike County Correctional Facility (“PCCF”), (collectively, “the Facilities”), while they await final disposition of their immigration cases. Each Petitioner suffers from chronic medical conditions and faces an increased risk of death or serious injury if exposed to COVID-19.
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION Prior to our fulsome discussion on the Petitioners’ request for preliminary
injunctive relief, we must first address two initial matters raised by Respondents.
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A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents have raised two threshold challenges to the Petitioners’ Motion. First, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Next, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. The Court has previously considered these arguments in our rendering on the TRO, but for the sake of completeness we shall summarize our determinations herein. It is clear that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Moreover, in the past few weeks, several judges within this District have had occasion to consider this same question and have all concluded that a habeas remedy can address a conditions of confinement claim, particularly in the context of the COVID-19 pandemic. See Camacho Lopez v. Lowe, No. 3:20-CV-563, 2020 WL 1689874, at*4-6 (M.D. Pa. Apr. 7, 2020); Verma v. Doll, No. 4:20-CV14, 2020 WL 1814149, at *3-4 (M.D. Pa. Apr. 9, 2020); Saillant v. Hoover, No. 1:20-CV-00609, 2020 WL 1891854, at *3 (M.D. Pa. Apr. 16, 2020); Engelund v. Doll, No. 4:20-cv-00604 (Slip Op. at *30-31). Accordingly, we find that
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Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Regarding standing, Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.” The COVID-19 pandemic has spread throughout Pennsylvania, including inside its prisons and jails. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Preliminary Injunction i. Legal Standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695
5

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 6 of 32
F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due process rights. (Doc. 2 at 27). We find that there is a distinction in this respect between the Petitioners previously housed at YCP and CCCF and those at PCCF. We shall discuss accordingly. To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged
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conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
The Supreme Court has held that ensuring a detainee’s presence at hearings and “the effective management of the detention facility once the individual is confined” are legitimate governmental interests. Bell, 441 U.S. at 540. The Third Circuit has further stated that the Government has a “legitimate . . . interest[]in reducing the flight risk posed by prisoners facing removal.” Builes v. Warden Moshannon Valley Corr. Ctr., 712 F. App’x 132, 134 (3d Cir. 2017).
To determine whether these legitimate interests are reasonably related to the conditions imposed, the Supreme Court has specifically warned that “such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Bell, 441
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 8 of 32
U.S. at 540 n.23. Under this standard, we recognize the legitimate government interests at play here: preventing Petitioners from absconding and protecting the public.4
We also note that these legitimate government interests are generally reasonably related to Petitioners’ continued confinement. Resumed detention will ensure Petitioners’ presence at deportation proceedings and potential removals and will protect the public from the aforementioned Petitioners with violent and concerning records.
We next consider whether the current conditions at the Facilities undercut this conclusion. Because the conditions at the Facilities are drastically different, we shall discuss each in turn. In so doing, we commend the Facilities for implementing the effective procedures that have largely alleviated our previous concerns. At the time of our writing nearly one month ago, it was reasonable to posit that it would only be a matter of time before COVID-19 decimated our prison populations. Thankfully, that feared outcome has generally not come to pass, largely due to the quick actions of Facility officials.

4

The vast majority of our Petitioners present little risk to the public. However, we note

that some pose concerns. Petitioner Rigoberto Gomez-Hernandez has a violent conviction on his

record for assaulting his wife in front of his children (Doc. 54 at 16). Petitioner Rodolfo

Augustin Juarez-Juarez attempted to purchase a firearm by falsely indicating that he was a

United States citizen. (Id. at 17). Petitioner H.C. Augustin was convicted for trafficking heroin

while in possession of unlicensed firearms. (Id. at 18).

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 9 of 32
a. York County Prison YCP has the capacity to house 2,245 inmates and historically operates near capacity. (Doc. 54 at 13). However, there are currently only 1,376 inmates and detainees housed at the facility. (Doc. 54 at 13). While it appears that detainees are still housed in dormitory-like settings, such a reduction in inmate population makes social distancing in this environment far more practicable at YCP. (Doc. 2, Ex. 18). Furthermore, YCP now requires all staff working within CERT activation, medical transport, mail processing, admissions, intake, and temperature monitoring to wear N95 masks. 5 (Doc. 54 at 20). All medical staff and those working in cohorted housing units are also required to wear N95 masks. (Id.). Detainees who work in the kitchen must wear surgical masks, as do all kitchen staff. (Id.). Detainees on isolation are required to wear N95 masks when they leave their housing units. (Id. at 21). Any detainee that must be transported is also required to wear a surgical mask. (Id.). Detainees are provided with a second mask to use while the previously-used masks are laundered. (Doc. 80 at 13). This is a drastic

5

N95 Respirators and Sugical Masks (Face Masks), UNITED STATES FOOD AND DRUG

ADMINISTRATION (April 5, 202), https://www.fda.gov/medical-devices/personal-protective-

equipment-infection-control/n95-respirators-and-surgical-masks-face-masks. (“An N95

respirator is a respiratory protective device designed to achieve a very close facial fit and very

efficient filtration of airborne particles. The 'N95' designation means that when subjected to

careful testing, the respirator blocks at least 95 percent of very small (0.3 micron) test particles.

If properly fitted, the filtration capabilities of N95 respirators exceed those of face masks”).

9

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 10 of 32
improvement in the conditions before us at the TRO stage, at which point we had allegations that not even medical staff wore personal protective equipment when interacting with detainees. (Doc. 47 at 14).
YCP is now also screening all incoming inmates for COVID-19 symptoms and sequestering any incoming detainees who may potentially have the virus. (Doc. 80 at 10). Even those who are asymptomatic but have known exposure are quarantined for 14 days. (Id.). YCP has dedicated housing units for those who are suspected or confirmed COVID-19 positive patients. (Id.). YCP also now screens all staff and vendors who enter the facilities, including body temperature checks. (Id. at 11). Furthermore, YCP has increased its sanitation frequency, allaying our previous concerns on this front as well. (Id.). YCP also conducts roving daily temperature checks and screening for influenza-like symptoms to ensure early detection and quarantine of potential new cases. (Id. at 12). Facility staff also provide information on COVID-19 transmission and infection prevention. (Id.).
Indeed, these enhanced procedures are working. YCP reports only one case of COVID-19 as of the date of this writing, which was confirmed on March 30, 2020. (Id. at 14). The individual has been in quarantine since that time in a negative pressure isolation room under medical observation. (Id.). Given that more than two weeks has passed since the beginning of the individual’s quarantine, we
10

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 11 of 32
can safely assume that YCP’s protocols have effectively prevented the transmission of COVID-19.
Considering the drastic changes put into effect at YCP, and the evidence that they are able to effectively control transmission from COVID-positive inmates, we find that the improved conditions therein do not negate the Government’s legitimate interest in detention. Thus, we find that the Petitioners previously housed at YCP are now unlikely to succeed on the merits of their claims.
b. Clinton County CCCF has the capacity to house 298 inmates. (Doc. 54 at 14). As of the date of this writing, however, there are only 153 inmates housed therein. While it appears that detainees are still housed in dormitory-like settings, such a reduction in inmate population makes social distancing in this environment far more practicable at CCCF. (Doc. 2, Ex. 10). Furthermore, CCCF now requires that transport and intake officers be properly fitted for and wear N95 masks. (Doc. 54 at 20). Those staff members must also wear goggles or safety glasses. (Id.). All staff are required to wear masks when in the secure portion of the facility. (Doc. 80 at 15). CCCF has also increased sanitation frequency and provides sanitation supplies to inmates and staff, thereby allaying our previous concerns on this front. (Id. at 14). CCCF now provides soap, water, and hard surface disinfectant in every housing unit at the prison. (Id.). The Facility has also added 20 hand sanitizer
11

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 12 of 32
stations throughout the facility, which may be utilized by both detainees and staff. (Id.). Transport vehicles are disinfected after each use. (Id.).
Additional cleaning of tables, chairs, door handles, telephones, desks, remotes, railings, tablets, and microwaves in detainee housing units are conducted multiple times per day. (Id.). The medical department is cleaned a minimum of twice per day. (Id.) The Law Library, receiving and discharge holding cells are cleaned and sanitized after each use. (Id. at 14-15). Staff are instructed to sanitize equipment such as desks, telephones, keyboards, mouse, radios, etc. at the beginning of each shift and at least once during shifts. (Id. at 15). All detainees have been provided with a minimum of 2 washable masks and are encouraged to utilize the masks at all times. (Id.).
These enhanced practices are working. CCCF reports no confirmed cases of COVID-19 as of the date of our writing. (Id.). Considering the drastic changes put into effect at CCCF, and the evidence that they are able to effectively control COVID-19 transmission, we find that the improved conditions therein do not negate the Government’s legitimate interest in detention. Thus, we find that the Petitioners previously housed at CCCF are now unlikely to succeed on the merits of their claims.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 13 of 32
c. Pike County PCF has the capacity to house 375 detainees. (Doc. 54 at 14). As of the date of this writing, PCF houses 250 inmates. (Id.). Such a reduction in inmate population makes social distancing in this environment far more practicable at PCCF. However, it appears that detainees do still share cells, as was the case at the issuance of our TRO. (Doc. 47 at 14-15). The Government updates us that “all detainees must maintain social distancing when not housed within the same cell.” (Doc. 54 at 21, emphasis added). Thus, one of our primary concerns regarding PCCF, the inability to social distance, has not been alleviated. We reiterate that social distancing is one of the primary effective means to prevent COVID-19 transmission, and that doing so is impossible when detainees share a cell. Nevertheless, we do not discount the changes PCCF has implemented since our last writing. PCCF has instituted a modified lockdown schedule. (Doc. 54 at 21). Detainees are permitted to leave their cells at staggered intervals to promote social distancing. (Id.). Meals are now served within detainee cells. (Id.). All staff are required to wear masks within the facility. (Id). ICE recently provided 500 masks to the Facility for inmate use. (Doc. 80 at 13). Staff conduct daily body temperature checks and screening for influenza-like symptoms. (Doc. 54 at 21). Once a detainee displays symptoms, they along with any cell mates, are placed in quarantine. (Id.). Staff has also increased the frequency of cleaning and disinfecting, including often-
13

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 14 of 32
touched surfaces. (Id.). PCCF also now screens any incoming staff and vendors for symptoms. (Doc. 80 at 11).
We commend PCCF on these updated procedures, but the data shows that they have been ineffective. Alarmingly, PCCF now reports 40 confirmed cases of COVID-19 amongst PCCF inmates and staff.6 It appears 12 of those cases are currently quarantined. (Id). Two inmates have died. (Id).7 These numbers show that there has been a sustained outbreak at PCCF, and that it has not yet been controlled. We find that detainees are still effectively unable to social distance within PCCF, and therefore find this Facility to be distinct from YCP and CCCF.
It is well established that social distancing and proper hygiene are the only effective means by which the spread of COVID-19 can be stopped. Petitioners at PCCF have shown that, despite their best efforts, they cannot practice these effective preventative measures. Indeed, a COVID-19 outbreak is currently underway therein as a result. Considering the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces. Indeed,

6

See Daily COVID-19 Status for M/PA Holding Facilities—4/24/20. U.S. MARSHALS

SERVICE AUTHORITY.

7

We believe that these are county inmates, not ICE detainees.

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 15 of 32
we cannot see the rational basis of such a risk and find that the legitimate government interests of reinstated detention are thus negated.
We therefore find that PCCF Petitioners are likely to succeed on the merits of their due process claim that their conditions of confinement expose them “to serious risks associated with COVID-19.” (Doc. 2 at 35). 8
iii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations

8

We note that Petitioners have also alleged a claim under the more exacting standard of

the Eighth Amendment. To succeed in proving that conditions of confinement violate the Eighth

Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently

serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as

deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138

(3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been

shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a

risk is objectively “sufficiently serious.” Turning, then, to the second element of such an Eighth

Amendment claim, “an inmate shows that prison officials acted with deliberate indifference to

the inmate’s health or safety or conditions of confinement that violated the inmate’s

constitutional rights.” Thomas, 948 F.3d at 138 (quoting Wilson v. Seiter, 501 U.S. 294, 302-03

(1991)). The Third Circuit has “adopted a subjective knowledge standard to establish deliberate

indifference, requiring a showing that prison officials actually knew of and disregarded

constitutional violations.” Id. Although COVID-19 presents a serious medical issue, as

detailed above, we believe that the Facilities have overhauled their procedures to prevent

COVID-19 transmission, as discussed. These enhanced measure show that the Facilities

recognize the serious threat COVID-19 poses, and have taken reasonable steps to protect

inmates. While those procedures have been ineffective at PCCF, the Eighth Amendment standard

is more exacting. We see no evidence that Respondents have “evidence[d] an absence of any

concern for the welfare of [their] charges.” Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149,

at *3-4 (M.D. Pa. Apr. 9, 2020). We thus find that any claim brought under the Eighth

Amendment is unlikely to succeed.

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 16 of 32
omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the preliminary injunction. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
When we first considered Petitioners’ claims nearly one month ago, the impact of COVID-19 on central Pennsylvania was largely prognostic. While confirmed cases had been reported in Pennsylvania, the gravity of COVID-19’s effects on our communities was yet to be seen. Indeed, given the grim reports on the then-current conditions in the Facilities, combined with the potentially devastating effects of the virus on Petitioners in particular, it was reasonable to
16

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 17 of 32
apprehend that COVID-19 was inexorably marching towards the Facilities, tsunami-like in its looming catastrophic impact.
This view was not unjustified. As of the date of this writing, COVID-19 has claimed 196,295 lives worldwide.9 The United States now records more confirmed cases of COVID-19 than any other country in the world.10 The most recently available statistics show that there were more than 965,767 cases of the virus in America, with 54,872 fatalities.11 This represented an increase of 929 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 41,165 confirmed cases of COVID19, with 1,550 fatalities.12 The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of

9

Coronavirus Disease (COVID-19) Outbreak Situation, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed April 27,

2020).

10 Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of Coronavirus than any Other Country, CNN, https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last accessed April 27, 2020).

11 Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US: Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/nginteractive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed April 27, 2020).

12

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

April 27, 2020).

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 18 of 32

963 cases: 593 cases with 8 deaths in York County, 349 cases with 12 deaths in Pike County, and 21 cases in Clinton County. Id. All 67 Pennsylvania counties are currently under a stay-at-home order in an attempt to slow the spread of the virus.13 All Pennsylvanians can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id.
Our concern was further supported by the nature of the virus itself. COVID19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 14 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.15 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15).

13

Stay at Home Order, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA,

https://www.pa.gov/guides/responding-to-covid-19/#StayatHomeOrder (last accessed April 27,

2020).

14

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed April 27,

2020).

15

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (April

27, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 19 of 32
In the last month, however, YCP and CCCF have quickly and effectively implemented the guidelines published by the CDC such that they have stymied any potential outbreak within their walls. See supra Part II.B.ii.a; Part II.B.ii.b. The fears which we reasonably harbored of a “tinderbox” scenario have largely failed to appear within those Facilities. This again is a credit to the staffs at those institutions. Indeed, and as aforestated, there are no reported cases at CCCF and the single reported case at YCP appears to have been effectively contained. Thus, we find that any allegations of irreparable harm at YCP and CCCF are largely speculative and cannot satisfy the second element of our Preliminary Injunction analysis. See Engelund v. Doll, No. 4:20-cv-00604 (Slip Op. at *32-33). Furthermore, we note that the medical services of these Facilities are not inundated with COVID-19 patients as was previously feared. Thus, we are confident that YCP and CCCF will be able to provide adequate medical case to Petitioners and other detainees should the need arise, thus also mitigating irreparable harm. Id.
The same cannot be said of PCCF. There, forty individuals have confirmed COVID-19 diagnoses.16 Despite PCCF’s best efforts at transmission control, the nature of the prison, including the need to house multiple inmates together in one cell, means that the harm faced therein by vulnerable Petitioners is not speculative.
16 Daily COVID-19 Status for M/PA Holding Facilities—4/24/20. U.S. MARSHALS SERVICE AUTHORITY.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 20 of 32
We commend PCCF on their efforts to control the virus’s spread, but the rate of transmission within has not been sufficiently limited. We thus find that the harm faced by Petitioners previously housed therein is “actual or imminent” and that their comorbidities would likely cause severe COVID-19 complications that could well jeopardize their lives. We therefore find that the likely irreparable injury to Petitioners at PCCF, as high-risk individuals, satisfies the second element of our TRO analysis.
iv. Balancing of the Equities and Public Interest Because each Petitioner presents a unique set of circumstances that we must balance against the public interest, we shall consider Petitioners individually regarding this last factor. Before doing so, we recognize several considerations that apply equally to all Petitioners. First, we recognize that ICE had legitimate, enumerated reasons that underpinned each Petitioner’s continued detention. It is not our present concern to question those reasons. Second, we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is an important public interest, as is protecting the public from potential recidivism. However, we also note that Petitioners’ failure to appear at future immigration proceedings, or to commit crimes while released, would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is generally low, given the current restricted state of travel in the
20

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 21 of 32
United States and the world during the COVID-19 pandemic. Within this framework, we now balance the equities and public interest as they apply to each Petitioner.
Bharatkumar G. Thakker. Petitioner Thakker is a native and citizen of India who was admitted to the United States as a Lawful Permanent Resident on March 13, 1973. (Doc. 54 at 14). He is 65 years old. (Doc. 2, Ex. 3). Petitioner Thakker lived in this country for approximately 30 years without incident, until he received his first conviction for a theft-related offense in 2003. (Id). He has since been convicted an additional eight times, all for nonviolent theft-related offenses. (Id.). Petitioner avers these convictions are a result of kleptomania and that he has sought treatment for this condition. (Doc. 2, Ex. 3). Before his release, Petitioner Thakker was detained at PCCF for approximately 27 months. (Id.). Petitioner Thakker has high cholesterol and blood pressure, his kidneys are not fully functioning, and he has a heart stent. (Id). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact, combined with the widespread outbreak currently underway at PCCF, heavily favors Petitioner’s continued release. We must also consider the weighty public interest in preventing future crime and in enforcing this country’s immigration laws. However, Petitioner’s crimes are all nonviolent misdemeanors, and we see very little risk to the public good in his continued release. Petitioner is also aware of the consequences of
21

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 22 of 32
absconding and of recidivism, and we recognize the efforts his counsel has agreed to undertake to ensure his continued compliance with his conditions of release. We thus find that the balance of equities in Petitioner Thakker’s case favors his continued release.
Adebodun Adebomi Idowu. Petitioner Idowu is a native of Nigeria. (Doc. 54 at 15). He is 57 years old. (Doc. 2, Ex. 4). He was a Lawful Permanent Resident of this country until he failed to establish that his marriage was entered into in good faith. (Doc. 54 at 15). Petitioner Idowu was subsequently convicted for Conspiracy to Launder Monetary Instruments and served 16 months imprisonment. (Id.). Petitioner Idowu was detained at CCCF for approximately 17 months before his release (Doc. 2, Ex. 4). He has Type-II diabetes and high cholesterol. (Id.). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in ensuring Petitioner’s presence at immigration proceedings and in enforcing this country’s immigration laws more generally. We now balance these competing interests. Noting that CCCF has no documented cases of COVID-19, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Idowu.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 23 of 32
Courtney Stubbs. Petitioner Stubbs is a native of Jamaica. (Doc. 54 at 16). He is 52 years old. (Doc. 2, Ex. 5). He was convicted of Conspiracy to Possess with Intent to Distribute Marijuana and served 46 months imprisonment. (Doc. 54 at 16). That offense occurred approximately 14 years ago. (Doc. 2, Ex. 5). We have no record of any further criminal activity by Petitioner Stubbs since that offense. Despite this, Petitioner Stubbs was detained at PCCF for approximately 10 months before his release. (Id.). Petitioner Stubbs has Type II diabetes, is immunocompromised as a result of a kidney transplant, has blood clots, and has a heart stent. (Id.). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact, combined with the widespread outbreak currently underway at PCCF, heavily favors Petitioner’s continued release. We must also consider the weighty public interest in ensuring Petitioner’s presence at immigration proceedings and in enforcing this country’s immigration laws more generally. However, Petitioner’s crime was nonviolent, and occurred approximately 14 years ago, since which he has been an apparently law-abiding citizen. We thus see very little risk to the public good in his continued release. Petitioner is also aware of the consequences of absconding and of recidivism, and we recognize the efforts his counsel has agreed to undertake to ensure his continued compliance with his conditions of release. Therefore, the balance of equities in Petitioner Stubbs’s case favors his continued release.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 24 of 32
Rigoberto Gomez-Hernandez. Petitioner Gomez-Hernandez is a native of Mexico. (Doc. 54 at 16). He is 52 years old. He has been convicted of DUI, Disorderly Conduct, and Simple Assault. (Id.). The assault conviction was the result of a domestic violence incident during which Petitioner assaulted his wife in front of his children. (Id.). Petitioner was detained at PCCF for approximately 7 months before his release. (Doc. 2, Ex. 7). Petitioner has diabetes and an ulcer. (Id.). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in preventing future crime and in enforcing this country’s immigration laws more generally. Here, Petitioner has been convicted of a violent crime: the assault of his wife. (Doc. 54 at 16). Conviction of a violent crime weighs heavily in favor of returning Petitioner to detention. Therefore, and despite the reported cases at PCCF, we find that the public interest in preventing violent assaults outweighs the lessened risk COVID-19 will pose to Petitioner Gomez-Hernandez due to the greatly enhanced infectious disease prevention measures now in place within PCCF.
Rodolfo Augustin Juarez-Juarez. Petitioner Juarez-Juarez is a native of El Salvador. (Doc. 54 at 17). He is 21 years old and has lived in this country since he was 16. (Doc. 2, Ex. 8). Petitioner was initially released on bond, but was subsequently placed on ARD for DUI. (Doc. 54 at 17). He also attempted to buy a
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 25 of 32
firearm, indicating that he was a United States Citizen. (Id). His bond was thus revoked. (Id.). Before his release, he was detained in YCCP since February 26, 2020. (Doc. 2, Ex. 8). Petitioner Juarez-Juarez has diabetes and difficulty breathing. (Doc. 2, Ex. 7). Considering Petitioner’s health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in preventing future crime and in enforcing this country’s immigration laws more generally. We now balance these competing interests. Noting that YCP has only one documented case of COVID-19 from over two weeks ago, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Juarez-Juarez.
Henry Pratt. Petitioner Pratt is a native of Liberia. He is 50 years old. (Doc. 2, Ex. 10). He has been convicted five times for various fraud-related offenses, all of which were nonviolent crimes. (Doc. 54 at 17). Before his release, he was detained at CCCF for approximately 3 years because he has been “uncooperative” in obtaining necessary travel documents for his removal to Liberia.17 Petitioner Pratt has diabetes and high blood pressure. Considering Petitioner’s age and health
17 We note that Petitioner avers he cannot obtain the documents ICE requests for his removal because the appropriate records were destroyed in the Liberian Civil War. (Doc. 63, Ex. 48).
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 26 of 32
conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in preventing a detainee facing imminent removal from absconding and in enforcing this country’s immigration laws more generally. We now balance these competing interests. Noting that CCCF has no documented cases of COVID-19, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Pratt.
Jean H.C. Augustin. Petitioner Augustin is a native of Haiti. (Doc. 54 at 17). He is 34 years old. (Doc. 2, Ex. 11). Petitioner Augustin was convicted of heroin trafficking and unlicensed possession of firearms in 2017. (Doc. 54 at 18). Before his release, he was detained at YCCP since June 12, 2018. (Doc. 2, Ex. 11). Petitioner Augustin has diabetes and high blood pressure. (Id.). He also has limited mobility and chronic pain as a result of bullet fragments lodged close to his spine. (Id.). His hemoglobin levels are low and he is chronically anemic. (Id.). Considering Petitioner’s health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in preventing future crime and in enforcing this country’s immigration laws more generally. We
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 27 of 32
now balance these competing interests. Noting that YCP has only one documented case of COVID-19 from over two weeks ago, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Augustin.
Mayowa Abayomi Oyerdiran. Petition Oyerdiran is a native of Nigeria. He is 40 years old. (Doc. 2, Ex. 12). On September 7, 2013, he was refused entry into the United States because he presented a French Passport with an alias. (Doc. 54 at 18). Petitioner was detained at YCP before his release. (Doc. 2, Ex. 12). He has asthma that requires an inhaler. (Id.). Considering Petitioner’s health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in ensuring Petitioner’s presence at immigration proceedings and in enforcing this country’s immigration laws more generally. We now balance these competing interests. Noting that YCP has only one documented case of COVID-19 from over two weeks ago, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Oyerdiran.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 28 of 32
Catalino Domingo Gomez-Lopez. Petitioner Lopez is a native of Guatemala. (Doc. 54 at 18). He is 51 years old. (Doc. 2, Ex. 15). He attempted to enter this country fraudulently three times using aliases. (Doc. 54 at 18-19). He also has several DUIs and related convictions. (Id.). Before his release, he had been detained in YCP since November 2018. (Doc. 2, Ex. 15). Petitioner has chronic symptoms of influenza. (Id.). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact heavily favors Petitioner’s continued release. However, we must also consider the weighty public interest in ensuring Petitioner’s presence at immigration proceedings and in enforcing this country’s immigration laws more generally. We now balance these competing concerns. Noting that YCP has only one documented case of COVID-19 from over two weeks ago, in conjunction with the greatly enhanced infectious disease prevention measures now in place therein, we find that the public’s interest in reinstated detention outweighs the lessened risk COVID-19 will pose to Petitioner Gomez-Lopez.
Dexter Anthony Hillocks. Petitioner Hillocks is a native of Trinidad and Tobago. (Doc 54 at 19). He is 54 years old. He has a 2015 conviction for criminal use of a communication facility involving heroin trafficking and a 2002 conviction for possession of marijuana. (Id.). Respondents admit that he was granted bond but failed to post the $18,000 that was required for his release. (Id.). Thus, the only
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 29 of 32
reason Petitioner Hillocks was still detained before our previous order was his lack of funds. Before his release, Petitioner was detained at PCCF. (Doc. 2, Ex. 16). Petitioner has diabetes, high blood pressure, and high cholesterol. (Id.). He also has leukemia. (Id.). Considering Petitioner’s age and health conditions, he is at an elevated risk of serious complications should he contract COVID-19. This fact, combined with the widespread outbreak currently underway at PCCF, heavily favors Petitioner’s continued release. We must also consider the weighty public interest in in ensuring Petitioner’s presence at immigration proceedings and in enforcing this country’s immigration laws more generally. However, Petitioner’s crimes are all nonviolent, and we see very little risk to the public good in his continued release. Indeed, ICE appears to have seen little risk either, has Petitioner was granted bond. Petitioner is also aware of the consequences of absconding and of recidivism, and we recognize the efforts his counsel has agreed to undertake to ensure his continued compliance with his conditions of release. We thus find that the balance of equities in Petitioner Hillocks’s case favors his continued release.
III. CONCLUSION As we stated in our March 31, 2020 opinion, in times such as these, we
must acknowledge that the status quo of a mere few weeks ago no longer applies. (Doc. 47 at 24). In granting the TRO, we appropriately erred on the side of great caution given the facts as they then existed, and the clearly virulent nature of
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COVID-19. But it is clear to the Court that in the nearly one month that has elapsed since we were first presented with this case, the Facilities have significantly and favorably altered their response to the COVID-19 pandemic. To be sure, CCCF remains free of any infections and YCP has limited its infection to one person, which we consider to be a significant success given the extremely contagious nature of the virus. While PCCF has attempted to mitigate the risk within its walls, we still harbor significant concerns about the safety of that facility relative to certain of these compromised Petitioners as evinced by the number of infections that have occurred there, among staff and inmates alike. Petitioners Thakker, Stubbs, and Hillock would be at great risk should they be returned to PCCF.
Based on the foregoing, it is our considered decision to deny the preliminary injunction as to the Petitioners who were housed at CCCF and YCP, and we shall require that they voluntarily surrender themselves for detention at these institutions. We shall further order that Petitioner Rigoberto GomezHernandez voluntarily surrender himself to PCCF for continued detention.18 We shall grant continued release to Petitioners Thakker, Stubbs and Hillocks, subject
18 See supra Part II.B.iv, holding that, despite the elevated risk Petitioner GomezHernandez faces from reinstated detention at PCCF, he poses a high level of risk to the public good due to his violent history. Thus, the public interest in his detention outweighs his lessened risk of contracting COVID-19.
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Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 31 of 32
to the conditions set forth hereinbelow. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Preliminary Injunction (Doc. 7) is GRANTED in part and DENIED in part as follows: a. The Motion is GRANTED with respect to Petitioners Thakker, Stubbs and Hillocks. b. Petitioners Thakker, Stubbs and Hillocks shall remain released from custody until either (1) the Governor of the Commonwealth of Pennsylvania lifts the COVID-19 state of emergency or (2) the CDC lifts its guideline on social distancing; whichever comes first. Should neither event occur within the intervening period, we shall conduct a telephonic status conference on July 6, 2020 at 2:00 p.m. Further instructions regarding the status call shall be given by future Order of Court. c. Petitioners Thakker, Stubbs and Hillocks shall abide by all of the conditions of release previously set forth in our Order dated April 13, 2020. (Doc. 60). d. The Motion is DENIED with respect to Petitioners Idowu, Gomez-Hernandez, Juarez, Pratt, Augustin, Oyediran, and Lopez.
2. Petitioners Idowu, Gomez-Hernandez, Juarez, Pratt, Augustin,
31

Case 1:20-cv-00480-JEJ Document 89 Filed 04/27/20 Page 32 of 32
Oyediran, and Lopez shall voluntarily surrender themselves to the institution from which they were released by 4:00 p.m. on April 28, 2020. 3. Upon their return to detention, Respondents shall individually quarantine Petitioners Idowu, Gomez-Hernandez, Juarez, Pratt, Augustin, Oyediran, and Lopez for a period of fourteen (14) days.
s/ John E. Jones III John E. Jones III United States District Judge
32

 
 Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

ORDER

April 28, 2020

Before the Court for resolution is the Petitioners’ Motion for

Reconsideration and Application for Stay of Order Granting in Part and Denying in

Part Motion for Preliminary Injunction (“the Motion”), (Doc. 90), filed on April

28, 2020.

By way of background, on March 31, 2020, we granted Petitioners’ Motion

for Temporary Restraining Order, immediately releasing Petitioners from the

Facilities in which they were being detained by ICE. (Doc. 47). On April 13, we

extended the TRO by a period of fourteen (14) days and imposed upon Petitioners

conditions of release. (Doc. 60). On April 27, 2020, we issued a Memorandum and

Order, (Doc. 89), granting in part and denying in part Petitioners’ Motion for

1

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 2 of 8
Preliminary Injunction.1 In so doing, we considered the voluminous record before us and determined that the conditions at York County Prison, (YCP”), and Clinton County Correctional Facility, (“CCCF”), had been adequately improved such that the Petitioners previously housed therein were no longer at risk of irreparable harm resulting from COVID-19. (Doc. 89 at 9-12; 15-19). We also individually considered and discussed the equities at play regarding each Petitioner’s potential re-detention. (Id. at 21-29).
We have reviewed the Petitioners’ brief and exhibits in support, (Doc. 91), of the instant Motion. Because time is of the essence, we shall not wait for Respondents’ brief in opposition.2 This matter is therefore ripe for our review. For the reasons that follow, we shall grant in part and deny in part the Motion. Petitioners Juarez-Juarez, Pratt, Augustin, and Oyediran will self-report to their respective Facilities by 4:00 p.m. today. We shall permit the continued release of Petitioner Idowu and Gomez-Lopez in light of the fact that they are currently ill.

1

We granted the Preliminary Injunction as to Petitioners Thakker, Stubbs, and Hillocks.

We denied the Preliminary Injunction as to Petitioners Idowu, Gomez-Hernandez, Juarez-Juarez,

Pratt, Augustin, Oyediran, and Gomez-Lopez. (Doc 89).

2

Petitioners Idowu, Gomez-Hernandez, Juarez-Juarez, Pratt, Augustin, Gomez-Lopez and

Oyediran are due to self-report to the Facilities by 4:00 p.m. today. (Doc. 89 at 32).

2

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 3 of 8
I. STANDARD OF REVIEW The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence, Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), and, as such, “motions for reconsideration should be granted sparingly.” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). Generally, a motion for reconsideration will only be granted on one of the following three grounds: (1) if there has been an intervening change in controlling law; (2) if new evidence, which was not previously available, has become available; or (3) if it is necessary to correct a clear error of law or to prevent manifest injustice. Max’s Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A motion for reconsideration may not be used to present a new legal theory for the first time, to raise new arguments that could have been made in support of the original motion, see Vaidya v. Xerox Corp., No. CIV.A.97-547, 1997 WL 732464, at *2 (E.D. Pa. 1997), and should not ask the court to rethink a decision that it has already made. Tobin v. GE, No. Civ. A. 95-4003, 1998 WL 31875, at *2 (E.D. Pa. 1998). Mere dissatisfaction with the Court’s ruling is not a proper basis for reconsideration. Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993).
With this exacting standard in mind, we turn to an analysis of the Petitioners’ Motion.
3

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 4 of 8
II. DISCUSSION In support of their reconsideration request, Petitioners submit newly-
supplied affidavits from Ekundayo Lymon Idowu (Petitioner Idowu’s wife), Vanessa Stine, Dr. Judd Walson, Catalino Domingo Gomez-Lopez, Jean Herdy Christy Augustin, and Rodolfo Augustin Juarez-Juarez. (Doc. 91, Exs. 1, 2, 3, 4, 8, 9). Petitioners also submit several expert reports. (Doc. 91, Exs. 5, 6, 7). In those just-filed affidavits, we learned for the first time that Petitioner Idowu has been diagnosed with COVID-19, has been hospitalized for several weeks as a result, and spent time in the Intensive Care Unit.3 (Doc. 91, at 1-2; Ex. 2). Petitioner Idowu remains hospitalized. (Id.). We also learned for the first time that Petitioner Gomez-Lopez was experiencing COVID-19 symptoms, but had not yet been tested.4 (Doc. 91, Ex. 4). We consider this newly-presented evidence to be highly relevant to the individualized determinations previously rendered regarding these

3

We are shocked and dismayed to hear this is the case. As we had ordered Petitioners to

report their whereabouts to their counsel once per week on April 13, 2020, we must assume that

counsel was aware that Petitioner Idowu was hospitalized with COVID-19 long before we

rendered a decision in this matter. (Doc. 60 at 3). Counsel, however, neglected to inform us this

was the case until after we had issued a decision unfavorable to their position. Such a choice

smacks of gamesmanship and a lack of candor to the Court. In the alternative, counsel neglected

the Order of this Court to remain apprised of their clients’ whereabouts and did not inform us as

such. While we have enormous respect for Petitioners’ counsel, these scenarios do not reflect

well upon them and cause us to have great concern.

4

We also consider this highly relevant information that we are disappointed to find was

not immediately reported to the Court.

4

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 5 of 8
Petitioners and will thus grant the Motion as it pertains to Petitioners Idowu and Gomez-Lopez.
Indeed, it defies all logic to order Petitioner Idowu to report to CCCF when he is currently hospitalized for a highly-contagious virus. We will not force him to leave the care of his able doctors, as doing so would cut against the equities at play in his case. We will also not require Petitioner Gomez-Lopez to report to YCP at this time considering his present symptoms. While, as discussed in our previous opinion, we have confidence in YCP’s newly-implemented mitigation procedures, we cannot countenance sending an individual with COVID-like symptoms back into the Facility. To do so would tempt fate beyond what fairness dictates. We will, however, order Petitioner Gomez-Lopez to be tested for the virus by the end of the week and will require his counsel to report those results immediately, whether they favor his position or not.
Concerning the remaining Petitioners, we now have before us new evidence concerning the perceived lack of testing within the Facilities. (Doc. 91 at 3-8). While we recognize Petitioners’ argument that widespread testing combats the spread of COVID-19, such testing is not a practicable solution at this time. Indeed, such voluminous testing is not available anywhere in this county as of the date of
5

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 6 of 8
this writing.5 We cannot require perfection of Respondents when such a result is logistically impossible to achieve. Indeed, as our esteemed colleague Chief Judge Conner has noted, “[t]here is no perfect solution to preventing the spread of COVID-19 in detention facilities, but York County Prison officials have taken reasonable steps to limit the spread throughout its facility.” Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149, at *6 (M.D. Pa. Apr. 9, 2020). We have enumerated in great detail the commendable steps YCP and CCCF have taken to prevent widespread infection within their Facilities. Those prevention measures are, as previously discussed, reasonable steps that have significantly slowed the spread of COVID-19 within their walls.
Finally, Petitioners request a reconsideration of the balance of equities as they concern Petitioners Idowu, Gomez-Hernandez, Juarez-Juarez, Pratt, Agustin, Oyederan, and Gomez-Lopez. (Doc. 91 at 14). We note that we conducted exhaustive individualized inquires as to each of these Petitioners in our previous
5 Robin Foster and E. J. Mundell, National Coronavirus Testing Strategy Announced as States Reopen, U.S. NEWS AND WORLD REPORT, April 28, 2020, https://www.usnews.com/news/healthnews/articles/2020-04-28/national-coronavirus-testing-strategy-announced-as-states-reopen (“By Sunday, the United States had conducted about 5.5 million tests, according to the Covid Tracking Project, which compiles those figures from individual states. But that number is only equivalent to about 1.7 % of the U.S. population”).
6

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 7 of 8
order, and we are unpersuaded by Petitioners’ newly-submitted evidence on this front.6
Accordingly, based on the foregoing, the Petitioners’ Motion shall be granted in part and denied in part as follows.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Petitioners’ Emergency Motion for Reconsideration (Doc. 90) is GRANTED IN PART and DENIED IN PART as follows: a. Our Memorandum and Order dated April 27, 2020 is VACATED as to Petitioners Idowu and Gomez-Lopez only. b. Petitioners Idowu and Gomez-Lopez will abide by the conditions of release set forth in our April 13, 2020 Order. c. With respect to Petitioner Idowu, his counsel shall file a status report concerning the status of his health on the docket by the close of business on Monday, May 4, 2020 and every successive Monday thereafter until further Order of Court. d. With respect to Petitioner Gomez-Lopez, he shall submit himself to a COVID-19 test by the end of the day on Friday, May 1, 2020.

6

Petitioners also contend that we did not consider the entire record before rendering our

previous decision. To the contrary, we have reviewed the full record in this matter and the fact

that we did not cite to certain portions of the record does not mean that we did not review the

same.

7

Case 1:20-cv-00480-JEJ Document 92 Filed 04/28/20 Page 8 of 8
His counsel shall facilitate the arrangement of Gomez-Lopez’s testing. Counsel shall immediately file a status report on the docket alerting the Court as to the result of Lopez’s test upon receipt of the results. 2. In all other respects, the Petitioners’ Emergency Motion for Reconsideration and Application for Stay of Order Granting in Part and Denying in Part Motion for Preliminary Injunction is DENIED.
s/ John E. Jones III John E. Jones III United States District Judge
8

 
 Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Petitioners-Plaintiffs,

Case No. 1:20-cv-00480

vs.

Judge John E. Jones III

CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,

Respondents-Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR STAY AND RECONSIDERATION

INTRODUCTION

Plaintiff Abdebodun Idowu left Clinton County Correctional Facility

(“CCCF”) pursuant to this Court’s order on March 31, 2020, with a slight cough.

MTS-Exhibit 1, Lymon Idowu Decl. at ¶ 4. Several days before his release, he had

been exposed to another detainee who was vomiting, coughing and ran a fever. Ex.

33-3 at ¶ 1. Four days after returning home, his health began to deteriorate; and four

days thereafter he needed 9-1-1 emergency services to transport him to a nearby

Newark, New Jersey hospital, where he has remained, for a time in the ICU, and is

now barely coherent. MTS-Exhibit 2, Stine Decl. at ¶ 7. The timing of events makes

it nearly certain that he contracted the virus while at CCCF. See Exhibit 3,

1

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 2 of 20
Declaration of Dr. Judd Walson (“Walson Decl.) at ¶ 12-13.1 This one tragic instance demonstrates why the Court’s reliance on the absence of confirmed cases to conclude that even medically vulnerable people detained at York and Clinton cannot satisfy the irreparable harm test is dangerously misguided.2 Plaintiffs respectfully and urgently ask this Court to reconsider the April 27 order, ECF No. 89, and vacate the portion of that order directing seven Plaintiffs to surrender for re-detention.
The stakes in this case are too high for the Court to resolve the matter on an incomplete record. It literally is a matter a life and death. To ensure sound decisionmaking and minimize the possibility of life-endangering errors, Plaintiffs ask the Court to (1) consider new evidence presented here, as well as the expert report and new Plaintiff declarations attached to Plaintiffs’ Amended Complaint, ECF No. 62, which apparently the Court did not consider; (2) vacate the portion of the order directing seven of the Plaintiffs to be re-detained, or at least stay that portion of the order pending development of a fuller record on current conditions in the Detention
1 Another plaintiff released on that same day from York County Prison (“YCP”), Catalino Domingo Gomez Lopez, developed symptoms of COVID-19 a week after he was released. He has not yet been tested. See MTS-Exhibit 4, Supp. Decl. Catalino Domingo Gomez Lopez at ¶¶ 2-6. 2 The April 27 order rests on a finding that because “there are no reported cases at CCCF and the single reported case at YCP appears to have been effectively contained … the allegations of irreparable harm at YCP and CCCF are largely speculative and cannot satisfy the second element of our Preliminary Injunction analysis.” Id. at 19.
2

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 3 of 20
Facilities; and (3) direct Defendants to file with the Court a report indicating for each institution the number of COVID tests conducted; the results of those tests broken down by positive, negative, and awaiting confirmation; and the number of people currently in quarantine or isolation. Whatever inchoate risk may exist by allowing the seven Plaintiffs to remain at liberty until the Court can consider a fulsome evidentiary record simply cannot outweigh the heightened risk of contagion and thereby serious illness and potentially death caused by returning them to the Detention Facilities.
ARGUMENT I. Despite the Lack of Confirmed Cases, the Risk Remains Dangerously
High. Returning the Plaintiffs, or other medically vulnerable people, to any of the three detention facilities, even though at the moment they might have zero confirmed cases of COVID-19 or only one confirmed positive case, still poses a substantial risk of imminent COVID-19 infection. See, e.g., Bent v. Barr, No. 4:19-cv-06123, 2020 WL 1812850, at *3 (N.D. Cal. Apr. 9, 2020) (“Given the exponential spread of the virus [and] the ability of COVID-19 to spread through asymptomatic individuals . . . effective relief for [petitioners] may not be possible if they are forced to wait until their particular facility records a confirmed case.”).3 Especially at York and Clinton,
3 See also Ixchop Perez v.Wolf, 5:19-cv-05191, 2020 WL 1865303, at *12 (N.D. Cal. Apr. 14, 2020) (“The mere fact that no cases have been reported in [a particular
3

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 4 of 20
neither publicly available reports nor Mr. Dunn’s declaration indicate how many
people have been tested, quarantined or isolated, all of which are necessary metrics for assessing risk.4 ICE’s own statistics indicate that nationwide it has tested very
few detainees, only 400 people out of more than 32,000 in ICE detention. See ECF
76-4 (Ex. 51). This strikingly low-test rate means that ICE has only tested about
1.25% of the people it holds in custody for COVID-19. Without adequate testing, “a
lack of proven COVID-19 cases . . . is functionally meaningless for determining if
there is a risk for COVID-19 transmission in a community or institution.” March 23
Declaration of Dr. Jonathan Golob (“Golob Decl.”) at ¶ 7 (ECF No. 2-2).
Newly released data raises cause for alarm as to what the actual rates may be
if testing were widespread in the ICE facilities: in prisons where testing was
facility] is irrelevant—it is not a matter of if COVID-19 will enter the facility, but when it will be detected there.”) (emphasis in original);; Ortuño v. Jennings, No. 3:20-cv-02064, 2020 WL 1701724, at *2 (N.D. Cal. Apr. 8, 2020); Christian A.R. v. Decker, 2:20-cv03600-MCA, slip op. at 3 (D.N.J. Apr. 12, 2020). 4 Pike is the only one of the three facilities that has issued any public information about testing or infection rates in recent weeks, with no updates from York since April 4 or Clinton since March 31. ICE’s COVID-19 webpage only reports the number of COVID-19-positive ICE employees, but York, Pike, and Clinton have county employees and have not provided information about how many staff (or detained individuals) have COVID-19 for weeks. See FACC (ECF No. 62). Pike County Prison’s last update is from April 6, 2020. See ECF 61-3. York County Prison’s last update is from April 4, 2020. See York County Prison News Report, (ECF No. 87-3). Clinton County Correctional Facility’s last public update is from March 31, 2020. See March 31, 2020 Clinton News Report (ECF No. 87-4).
4

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 5 of 20
completed for all detained individuals, some facilities have seen an infection rate of over 80%. Of these, almost all those testing positive were asymptomatic.5 Without universal and periodic testing, there are likely many more cases of undetected COVID-19 infection than have been reported. See Walson Decl. at ¶ 15. Studies now show that “transmission of COVID-19 is approximately 19 times more likely in closed environments,” such as the three ICE facilities. Id. at ¶ 7. The absence of positive test results is not cause for celebration just yet, especially given the troubling signs on the horizon.
COVID-19 cases among ICE detainees nationwide have grown at an alarming rate. Nothwithstanding the low rate of testing in ICE detention facilities, the number of individuals who have tested positive for COVID-19 in ICE detention facilities has more than doubled over a five-day period, jumping from 124 detained individuals who tested positive on April 17, 2020 to 287 people on April 22. See ECF No. 76, Apr. 23, 2020 Letter to Court; ECF No. 76-2, Apr. 22, 2020 ICE COVID-19 Statistics; ECF No. 76-3, Apr. 17, 2020 ICE COVID Statistics. These numbers only account for those who are tested, but do not include the many who have been in
5 See MTS-Exhibit 5, Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus—96% Without Symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisonstesting-in/in-four-u-s-state-prisons-nearly-3300-inmates-test-positive-forcoronavirus-96-without-symptoms-idUSKCN2270RX (last accessed Apr. 27, 2020).
5

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 6 of 20
contact with those who tested positive but have not yet themselves been tested. See T.S.N. Decl. at ¶ 23 (ECF No. 63-3).
Moreover, the rate of COVID-19 infections in Pennsylvania has grown exponentially since this Court first considered the risk of infection in these facilities, with an average increase of 25% per day over the past month. Amon-New Decl. at ¶ 5 (ECF No. 62-1). The rising infection rates include York, Clinton and Pike counties: Clinton County has seen a nearly three-fold increase over a twelve-day period; York County has increased by 200 cases; and Pike has 100 people newly confirmed.6 Unfortunately, these numbers continue to grow, causing opportunities for community spread into the facilities to multiply. See Amon-New Dec. at ¶ 51 (ECF No. 62).
Mr. Idowu’s case is further proof of three critical facts: 1) we do not and cannot know that a person is positive for COVID-19 until and unless they are tested, 2) an individual who has not been tested while detained may be infected and spreading the virus before becoming symptomatic; and 3) the consequences of unnecessarily exposing a person with a pre-existing medical condition can be severe.

6 Compare MTS-Exhibit 6, COVID-19 Data for Pennsylvania, Pennsylvania

Department of Health (last updated April 26, 2020)

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx

with

Amon-New Decl. at ¶ 51.

6

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 7 of 20
Mr. Idowu had a cough at the time of release from Clinton but was not tested while at the facility. See Ms. Idowu Decl. at ¶ 4. Given the timing of the onset of his symptoms, he almost certainly was infected while detained at Clinton, and only tested positive after he was released and hospitalized. Walson Decl. at ¶ 12. He remains hospitalized, has an active lung infection, and is receiving oxygen. Ms. Idowu Decl. at ¶ 11. Mr. Idowu remains at high risk for potential deterioration and need for invasive ventilation. Walson Decl. at ¶ 14. A medical expert reviewing Mr. Idowu’s situation indicated that he simply could not be returned to a detention facility:
In light of Mr. Idowu’s reported current condition, it is impossible for him to surrender for re-detention. He is currently on oxygen and is at high risk for potential deterioration and need for invasive ventilation. He is also at high risk of other complications of COVID-19 and will require careful clinical monitoring and care. In addition, patients with COVID-19 continue to shed virus for extended periods (weeks) and he may be a potential transmission risk to other patients and staff. Id. at ¶ 14. His critical health condition lays bare the stark consequences of deficiencies at the facilities. Inadequate testing cannot mask this reality. A just-released scientific study that models the spread of COVID-19 at ICE detention facilities shows that, once introduced at a facility, 72% to 80% of the detainee population can be expected to become infected within ninety days, with 15.1% hospitalized. See Irvine et al., Modeling COVID-19 & Impacts on U.S. Immigration & Enforcement (ICE) Detention Facilities, 2020, J. Urban
7

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 8 of 20
Health (2020) (forthcoming) (attached as MTS-Exhibit 7). It may also take a long time to reach the peak at a facility, with more populated facilities, like the York facility, taking closer to 70 days or longer. Id. Researchers demonstrate that unmitigated spread of the virus within detention centers will overwhelm local hospitals with COVID-19 patients from these facilities. Id. at 7.
The fact the disease has penetrated all three facilities means the danger remains, despite the absence of widespread positive tests. Dr. Walson observes that “in a congregate setting such as the Clinton Correctional Facility, without universal and periodic testing, there may be many more cases of COVID-19 infection that have remained undetected. Without testing and proper isolation of COVID-positive individuals, COVID-19 infection is likely to spread in the congregate setting and is particularly dangerous for people of older age (over 50 years) and those with comorbidities (including diabetes, hypertension, cardiac disease and lung disease).” Walson Decl. at ¶ 15. And evidence not considered by this Court in the April 27 order, filed with Plaintiffs’ Amended Complaint, demonstrates that Defendants are neither testing nor isolating people properly. See e.g. T.S.N. Decl. at at ¶ 22-25 (ECF No. 63-3); Brown Decl. at ¶ 20 (ECF No. 63-9); Roberts Decl. at ¶ 14 (ECF No. 6311). II. The Court Did Not Consider Plaintiffs’ Evidence Refuting Defendants’
Claimed Improvements and Expert Testimony that ICE Still Fails to Abide by CDC Guidelines
8

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 9 of 20
The Court in the April 27 order appears not to have considered evidence accompanying Plaintiffs’ Amended Complaint, see ECF No. 89 at 1 n.1, which includes fact declarations disputing Defendants’ claimed practices on social distancing, hygiene and sanitization, and a new expert declaration discussing how Defendants’ new guidelines and practices on cohorting and isolation do not, in fact, conform to CDC guidance. See ECF Nos. 62 and 63-1 through 6-11.
ICE’s own guidelines admit that CDC-recommended social distancing may be impossible at many facilities, and thus do not require safe social distancing. Amon-New Decl. at ¶ 35(c) (ECF No. 62-1); FACC at ¶ 99 (ECF No. 62). The failure to mandate and ensure safe social distancing at the Facilities renders any riskmitigation strategy ineffective in preventing COVID-19 infection. Id. Plaintiffs have submitted eleven new declarations attesting to the impossibility of practicing social distancing within cramped living spaces with overused bathrooms and shared common areas. See FACC at ¶¶ 43-46; see also ECF Nos. 63-1 to 63-11. Defendants have not provided any testimony to the Court on social distancing to refute these declarations.
Despite the fact that the CDC emphasizes the need for medically isolating confirmed and suspected cases, Defendants are leaving individuals with symptoms
9

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 10 of 20
in common dorm spaces for days. FACC at ¶ 103 (ECF No. 62).7 Rather than adhere to the isolation protocol—which they likely have neither the physical space nor staffing capacity to implement— Defendants fall back on the problematic practice of “cohorting.” The CDC identifies this practice as a measure of last resort in detention facilities. Amon-New Decl. at ¶ 41(b) (ECF No. 62-1); see also FACC at ¶¶ 105-106 (ECF No. 62). But ICE’s manner of implementing this measure— confining all individuals exposed to a confirmed COVID-19 patient in spaces where it is impossible to practice social distancing—runs afoul of public health guidance and will, in fact, facilitate transmission to those who are not yet infected. AmonNew Decl. at ¶ 41(f) (ECF No. 62-1); see also FACC at ¶¶ 105-106 (ECF No. 62).
The Government has also confirmed, once again, that it has no intention of testing staff or detained individuals unless they are symptomatic. See Amon NewDecl. at ¶¶ 37(a), (d) (ECF No. 62-1) (describing how ICE’s current protocols of a verbal screening and temperature check are insufficient given that the “entire state of Pennsylvania is listed as having “widespread” community transmission and that effective screening of staff would have to be “frequent (daily) tests,” which seems
7 See also Gumbs Navarro Decl. at ¶ 23 (ECF No. 63-2) (describing symptomatic individuals who are left in the dorms); David Decl. at ¶¶ 17-18 (reporting that it took a week for the facilities to remove a sick individual and that people left behind are now coughing); T.S.N Decl. at ¶ 22-23 (ECF No. 63-3) (recounting how it took six days before a sick individual was removed, and how others now have symptoms but are only receiving temperature checks); D.F. Decl. at ¶ 19 (ECF No. 63-10) (describing someone in the dorm with flu-like symptoms).
10

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 11 of 20
unlikely given costs and test shortages). Because individuals may be infected and spreading the virus to others for days or even weeks while exhibiting mild symptoms or no symptoms at all, awaiting the development of symptoms before acting is a recipe for an outbreak—which we have already seen at Pike and is virtually guaranteed if Defendants continue to maintain their defiance of basic epidemiological consensus. See Walson Decl. at ¶¶ 13, 15; Bent v. Barr, No. 4:19cv-06123, 2020 WL 1812850, at *3 (N.D. Cal. Apr. 9, 2020) (holding that temperature screening “is of limited benefit”).
Sanitization measures at the Facilities further fall short of the protocols Defendants describe. Plaintiffs have no control over their soap rations or access to other sanitization products, which are often in short supply. See FACC at ¶¶ 48, 108. No hand sanitizer is provided at the York facility, and the Clinton facility regularly runs out of it. Id. at ¶ 48. The CDC recognizes that risk of spread is heightened where facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants. Amon-New Decl. at ¶ 55 (ECF No. 62-1). Yet despite these dangers, the Pennsylvania facilities do not strictly adhere to ICE’s most recent written guidance. Id. at ¶ 42(a).
Moreover, sanitation measures alone, even if they were adequate, are woefully insufficient to stop the spread of COVID-19. If such measures were remotely adequate, government officials across the country would not have made the painful
11

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 12 of 20
but necessary decision to close high-density spaces, nor would people throughout Pennsylvania and all over the nation be advised to stay home for all but the most essential purposes. This is why other courts have similarly recognized that ICE’s mitigation measures cannot protect those who are particularly vulnerable to COVID19. See, e.g., Hernandez Roman v. Wolf, No. 20-cv-768, 2020 WL 1952656 *7-8 (C.D. Cal. Apr. 23, 2020) (finding insufficient measures by the government where class members are not required, or even given an opportunity, to socially distance at all times); Durel B. v. Decker, No 2:20-cv-03430, 2020 WL 1922140, at *8 (D.N.J. Apr. 21, 2020) (“While Respondents have undertaken significant measures to try and prevent COVID-19 from further spreading throughout the facility, those measures appear insufficient to protect Petitioner whose allegedly compromised immune system puts him at greater risk of severe illness”); Jeferson V. G. v. Decker, No. CV 20-3644, 2020 WL 1873018, at *8 (D.N.J. Apr. 15, 2020) (“Although Respondents have delineated the numerous measures they have undertaken to prevent the spread of COVID-19 in HCCC, those measures are insufficient to protect Petitioner whose asthma puts him at higher risk of severe illness from COVID-19.”).
The new evidence of (1) Mr. Idowu’s hospitalization for serious medical problems caused by COVID-19, which he almost certainly contracted at the CCCF; (2) ICE’s failure to rebut evidence that despite population decreases in the facilities they continue to house people in ways that makes safe social distancing impossible;
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(3) ICE’s failure to follow its protocols, guidelines and alleged practices on hygiene and sanitization; and (4) ICE’s failure to follow CDC recommended practices on testing, quarantine and isolation, all warrant granting the motion for reconsideration and vacating, or at least staying, that part of the order directing the seven Plaintiffs to surrender for re-detention. III. The Danger of Returning Medically Vulnerable People to the Detention
Facilities Eclipses any Risk of Harm to Defendants or the Public. In assessing any risk of harm to Defendants or the public, the status of Plaintiffs as civil immigration detainees is of critical importance. For those with criminal histories, they have already served the sentences required by a criminal conviction, if any. If they were U.S. citizens, they would already be free from any kind of state confinement, deemed rehabilitated and no further risk to the public. The notion that their different immigration status transforms them into such a public danger that they categorically cannot be released—even under careful supervision and even during a life-threatening pandemic—is unfounded. See Basank v. Decker, No. 1:20-cv-02518, 2020 WL 1953847, at *13 (S.D.N.Y. Apr. 23, 2020) (“Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. To the contrary, public health and safety are served best by rapidly decreasing the number of individuals held in confined, unsafe conditions.”); Zaya v. Adducci, No. 5:20-cv-10921, 2020
13

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 14 of 20
WL 1903172, at *6 (E.D. Mich. Apr. 18, 2020) (granting temporary restraining order directing detainee’s release and noting “critically for this case…[for a petitioner who has several drug related convictions, as well as convictions for murder and domestic violence], Petitioner has completed is sentences for each of these convictions.”).
Plaintiffs also respectfully request reconsideration of this Court’s determination that the balance of the equities weighs in favor of reinstating the detention of Plaintiffs Idowu, Gomez-Hernandez, Juarez, Pratt, Augustin, Oyediran, and Lopez. Although “protect[ing] the public” may serve the government’s interests, ECF NO. 89 at 8, this Court has observed that “[t]he vast majority of [] Plaintiffs present little risk to the public,” id. at 8 n.4. Importantly, each Plaintiff’s detention must be reasonably related to the government’s interest; otherwise, such detention becomes unconstitutionally punitive. E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019). And as numerous other courts have observed, there is a strong public interest in releasing Plaintiffs with serious medical vulnerabilities from unsafe conditions. See, e.g., Basank v. Decker, supra, 2020 WL 1953847 at *13.
Additionally, a closer review of each Plaintiff’s facts shows that any legitimate government interest in reinstated detention is highly attenuated. Specifically:
 This Court cited the interest in ensuring Mr. Idowu’s continued appearance at immigration proceedings as warranting his re-detention. Order at 22. However, there is no evidence that Mr. Idowu would fail to appear for his hearings if he remained at liberty. He is married to a
14

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 15 of 20
U.S. citizen and has a U.S. citizen adult daughter. Lymon Idowu Decl. at ¶ 2. Mr. Idowu poses even less of a flight risk now, as he has contracted COVID-19 and is currently hospitalized and receiving oxygen. Lymon Idowu Decl. at ¶ 2. And as this Court observed, there is no reason to believe that he would pose any risk to the public. Order at 8 n.4. Because he is currently hospitalized for COVID-19 and receiving oxygen, re-detaining him would pose a grave risk to his health as well as the health of staff and other detained individuals at the facility to whom he could transmit the virus. See Walson Decl. at ¶¶ 14-15.
 This Court cited Mr. Pratt’s “imminent removal” as supplying a basis for his redetention. Order at 26. But his removal is far from “imminent” – he has been detained for over three years because of ICE’s inability to obtain travel documents for him because records were destroyed in the civil war that caused Mr. Pratt to seek asylum in the United States. Pratt Supp. Decl. at ¶ 9 (ECF No. 63-13). And there is no reason to believe that he would pose any risk to the public. Order at 8 n.4.
 Mr. Oyediran, an asylum seeker, and Mr. Gomez-Lopez, who has deep community ties, similarly pose no dangers to the community, as this Court has found. Order at 8 n.4. And there is no reason to believe they would fail to appear for their immigration hearings, or fail to comply with any reasonable release conditions. To the contrary, both have lived at liberty for the last few weeks with no sign of noncompliance.
This Court also noted “concerns” with the prior criminal convictions of three
Plaintiffs. Order at 8 n.4, 24-25, 26-27. Plaintiffs respectfully maintain that none of
the three have histories that would support a finding that they are a danger to the
community, particularly given that each has served his sentence and has lived at
liberty without violating the terms of his release. See, e.g., Malam v. Adduci, No.
5:20-cv-10829, 2020 WL 1899570, at * 7 (E.D. Mich. Apr. 17, 2020) (“[T]he Court
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will only note that Respondent’s assertion regarding Petitioner’s criminal history is
irrelevant… Petitioner was released on April 6, 2020; Respondent has provided no
evidence that Petitioner has failed to comply with the terms of her release or the
requirements of Michigan’s executive orders since her release. Respondent’s
argument is conclusory and does not relate to Petitioner’s claim regarding the risks
posed by her continued detention.”); Zaya, supra, 2020 WL 1903172, at *6.
Specifically:
 As to Mr. Gomez Hernandez, an immigration judge accounted for his criminal history and the totality of the circumstances, and found that Mr. Gomez-Hernandez had shown he had “good moral character” under the immigration statute, and warranted non-lawful permanent resident cancellation of removal (a form of relief that grants a person lawful permanent residency, e.g. a green card). ECF No. 1 at ¶ 80. DHS has appealed the immigration judge’s findings, but those findings undercut the notion that Mr. Gomez-Hernandez’s criminal history is serious enough to justify detention in light of the current pandemic. And Mr. GomezHernandez has a strong interest in complying with his conditions of release, given the reasonable likelihood he will ultimately succeed in winning immigration relief.
 As to Mr. Juarez Juarez, his criminal history does not support a finding that he is a danger to the community. In 2018, Mr. Juarez Juarez was charged with a single DUI and placed in ARD in April 2019. See Juarez Juarez, Decl. at ¶ 3 (ECF No. 2-8); MTS-Exhibit 8, Suppl. Juarez Juarez Decl., at ¶ 3. He successfully completed ARD and completed community service hours. Id, at ¶ 4. Around February, ICE came to his house and told him that he was falsely identifying as a U.S. citizen in the application for a firearm. Id. at ¶ 5. He wants to understand what happened, and to comply with the law. Id. He has followed all of the conditions pursuant to the order extending the TRO by remaining at home with his parents, who have been helping to take care of his essential needs. Id. at ¶ 6.
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 As to Mr. Augustin, his criminal history does not support a finding that he is a danger to the community. Both of his offenses are nonviolent and happened after a deeply traumatic event in Mr. Augustin’s life. MTS-Exhibit 8, Augustin Decl. at ¶¶ 4-5. In 2015, Mr. Augustin was a victim of a violent crime which almost resulted in his death and he went into a semidissociative state until the time of his arrest. Id. at ¶ 4. Mr. Augustin suffers from severe symptoms of trauma and depression and the Immigration Judge adjudicating his case found him to be mentally incompetent. Id. at ¶ 6. Mr. Augustin has significant ties to the U.S. He has lived in the U.S. since he was 15 years old. ECF No. 2-11 at ¶ 1. Most of his family, including his 5year-old daughter are either U.S. citizens or lawful permanent residents. Augustin Decl. at ¶ 7 He is currently living with and taking care of his uncle in Philadelphia who has lung disease and a pacemaker. Id. at ¶ 8. He has followed all of the conditions pursuant to the order extending the TRO.
CONCLUSION
It is premature to declare victory over the virus and risk Plaintiffs’ lives. We
know that two individuals in custody at Pike County Correctional Facility have died.
¶ 51 (ECF No. 62-1). The fact that they were county detainees is beside the point,
given that ICE detainees at all three facilities are co-housed with county detainees.
Mr. Idowu was in intensive care and remains hospitalized, almost certainly as a result
of contracting COVID-19 while detained at CCCF. Given the potentially serious and
even lethal consequences that attend the virus in people who are older or have a pre-
existing medical condition, we urgently ask the Court to vacate the portion of its
order directing the Plaintiffs’ re-detention, or at least stay that portion of the order
pending the development of additional information about what is really occurring
inside the Detention Facilities. Neither Plaintiffs’ counsel nor this Court know the
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Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 18 of 20
level of contagion inside the facilities, and neither do the Defendants, unless they have performed widespread testing. Without knowing the number of tests performed at each facility, the results of those tests, and how people are suspected of infection by virtue of placement in quarantine or isolation, all the parties to this case are flying blind. Despite the absence of positive tests—as of now, that we know—returning medically vulnerable plaintiffs to the Facilities would be reckless and potentially catastrophic. A brief stay to augment the record will not materially harm the Defendants, but could well save Plaintiffs’ lives.
If the Court declines to reconsider its order, the Plaintiffs request a stay pending appeal.

Dated: April 28, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Esq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513

18

Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 19 of 20

David C. Fathi (WA 24893)** Eunice H. Cho (WA 53711)** AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org
Cecillia Wang (CA 187782)* Stephen Kang (CA 292280)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0774 E: cwang@aclu.org E: skang@aclu.org
*Admitted pro hac vice **Admitted pro hac vice; not admitted
in DC; practice limited to federal courts

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Case 1:20-cv-00480-JEJ Document 91 Filed 04/28/20 Page 20 of 20

CERTIFICATION PURSUANT TO LOCAL RULE 7.8

Pursuant to Local Rule 7.8(b)(2), I hereby certify that the foregoing PLAINTIFFS’ EMERGENCY MOTION FOR STAY AND RECONSIDERATION complies with the word-count limited described therein and does not exceed 5,000 words.

Dated: April 28, 2020

/s/ Kelly Krellner Kelly Krellner, Esq. (PA 322080) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: kelly.krellner@dechert.com

 
 [Docket Number Pending]
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
BHARATKUMAR G. THAKKER, et al., Plaintiffs-Appellants, v.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al., Defendants-Appellees.
On Appeal from the United States District Court For the Middle District of Pennsylvania D.C. No. 1:20-cv-000480 District Judge: Hon. John E. Jones III
EMERGENCY MOTION FOR STAY PENDING APPEAL

Will W. Sachse, Esq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080) Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David C. Fathi (WA 24893) Eunice H. Cho (WA 53711)

Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394) Erika Nyborg-Burch (NY 5485578) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael Tan (NY 4654208) Omar C. Jadwat (NY 4118170) AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

E: enyborg-burch@aclupa.org
Cecillia Wang (CA 187782) Stephen Kang (CA 292280) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0774 E: cwang@aclu.org E: skang@aclu.org

1

INTRODUCTION On April 27, 2020, the District Court granted in part and denied in part Plaintiffs-Petitioners’ (“Plaintiffs”) motion for a preliminary injunction, ordering the re-detention of medically-vulnerable individuals in the custody of U.S. Immigrations and Customs Enforcement (“ICE”). Memorandum & Order, ECF No. 89 (Apr. 27, 2020). Plaintiffs are immigration detainees who are over age 55 and/or have one of more pre-existing medical conditions that puts them at about a 15% risk of death if they contract COVID-19, and a much higher risk of needing hospitalization and intensive care. At this unprecedented time in history, not only does re-detention violate Plaintiffs’ constitutional rights, re-detention puts them at significant risk of serious illness and death from COVID-19. The stakes could not be higher. On March 31, 2020, the District Court issued a temporary restraining order, ordering the release of at-risk individuals from ICE detention at York County Prison, Clinton County Correctional Facility, and Pike County Correctional Facility. Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020). Recognizing that “it would be heartless and inhumane not to recognize [Plaintiffs’] plight” in the face of global pandemic with “unprecedented and ghastly” results, id. at *9, the Court found that the conditions at all three facilities included “overcrowding that makes social distancing impossible.” Id. at *6. The Court found “no rational relationship between legitimate government objective and keeping [Plaintiffs] detained in unsanitary, tightly-packed environments—
1

doing so would constitute a punishment” in violation of the Fifth Amendment. Id. at *8.
Despite these findings, on April 27, 2020, the District Court found that a preliminary injunction was not appropriate for the continued release of several of the individuals, notably those from the Clinton County Correctional Facility and York County Prison, concluding that the conditions had improved at those facilities and there were few if any confirmed cases of COVID-19. ECF No. 89 at 18-19. The District Court, however, reached an erroneous decision—based on an incomplete record, a misunderstanding of the science behind the disease, and legal errors. See ECF No. 89 at 1 n.1; ECF No. 62. But the absence of confirmed positive tests does not mean there is no virus, which is especially true given that Defendants have conducted few if any tests. The proof of this takes the form of Plaintiff Adebodum Idowu, one of the Plaintiffs originally ordered to report today at 4:00.1 Indeed, just days after his release on March 31 from Clinton County Correctional Facility, he required emergency medical attention and has remained hospitalized for COVID-19 for the past three weeks, for a time in intensive care. Plaintiffs submitted an expert declaration by an infectious diseases physician who states that Mr. Idowu “almost certainly” contracted COVID-19 while he was detained. Mr. Idowu’s story makes clear that these facilities are not COVID-19-
1 The district court granted reconsideration as to Mr. Idowu and one other plaintiff who has symptoms consistent with COVID-19 illness. See ECF No. 92.
2

free as Defendants aver. Failing to test for illness does not mean that the illness
is not present. Returning medically-vulnerable plaintiffs to these Facilities would
be reckless and potentially catastrophic. The stakes are literally life and death
here.
For the reasons detailed below, an emergency stay pending appeal is
imperative to protect the lives of these vulnerable detainees.
ARGUMENT
In deciding whether to stay habeas proceedings pending appeal, appellate
courts “follow the general standards for staying a civil judgment.” Hilton v.
Braunskill, 481 U.S. 770, 775 (1987).
[T]he factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; and (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.2
Id. at 776.
As demonstrated below, every factor favors Plaintiffs’ request for an
emergency stay. But an emergency stay is necessary to protect Plaintiffs’ lives.
Employing this Court’s “sliding-scale” approach, a stay is appropriate because
Plaintiffs “demonstrate[] irreparable harm that decidedly outweighs any potential
2 Plaintiffs’ motion also complies with the requirements set forth in Federal Rule of Appellate Procedure 8. In its motion for reconsideration, Plaintiffs sought, in the alternative, a stay pending appeal. See ECF No. 90. Moreover, given the highly time-sensitive nature of the order requiring re-detention today, immediate action before this Court is necessary. See Fed. R. App. P. 8(a)(2).
3

harm to [Defendants],” as well as “at a minimum, serious questions going to the

merits.” In re Revel AC, Inc., 802 F.3d 558, 570 (3d Cir. 2015) (internal quotation

marks and citations omitted). Accordingly, Plaintiffs address the irreparable

harm factor first.

I.

Irreparable Harm In the Form of Serious Illness or Death Will Result

Absent an Emergency Stay.

As the District Court already found, Plaintiffs are “members of high-risk

groups.” Thakker, 2020 WL 1671563, at *6. Each Plaintiff “has an underlying

medical condition that heightens their risk of serious COVID-19 effects, among

them asthma, diabetes, heart conditions, hepatitis, and immunocompromising

conditions such as leukemia and organ transplants.” Id. Plaintiffs remain

“particularly vulnerable due to age and underlying medical conditions.” Id. at *3.

As Plaintiffs further explained in their Amended Complaint, which was filed prior

to the district court’s order but apparently not considered in the preliminary

injunction ruling:

Outcomes from COVID-19 vary from asymptomatic infection to death. Individuals who are at low risk may experience mild symptoms, while high-risk individuals may suffer respiratory failure from the disease. Amon-New Decl. at ¶ 6 [ECF No. 62-1]. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen will die. Golob Decl. at ¶ 4 (ECF 2-2). In other words, more than one in every seven people in this high-risk group are likely to die, and an even higher percentage will suffer serious illness.

Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. Id. at ¶ 9.

4

Am. Compl. ¶¶ 34-35. COVID-19 can cause long-term damage to vital organs, including the heart, lungs, and kidneys. Id. at ¶¶ 36-37. There remains no vaccine, treatment, or antiviral medication for COVID-19. Id. at ¶ 39. The only way to protect vulnerable individuals is to prevent their infection, and social distancing is the most effective way to do so. Id. at ¶ 41; Thakker, 2020 WL 1671563, at *8 (“Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19.”). Defendants do not dispute these realities.
The factor that changed the district court’s view that some petitioners could be safely returned to detention was that one facility, York County Prison, had only one confirmed positive case, while the other, Clinton County Correctional Facility, had no reported confirmed tests. As explained in Plaintiffs’ request for reconsideration and a stay, ECF No. 91, the absence of confirmed tests is meaningless because there is no indication in the record that Defendants are testing. The rate of confirmed COVID-19 infections in Pennsylvania continues to grow, but statistics fail to account for the unconfirmed, untested cases. Indeed, there is a deficit of information about testing in detention facilities, and neither publicly-available information nor Defendants’ declarant Mr. Dunn indicate how many people have been tested, quarantined or isolated, all of which are necessary metrics for assessing risk.3 ICE’s own statistics indicate that nationwide, it has
3 Pike is the only one of the three facilities that has issued any public information about testing or infection rates in recent weeks, with no updates from York since
5

tested very few detainees, only 400 people out of more than 32,000 in ICE
detention. See ECF 76-4 (Ex. 51). This strikingly low-test rate means that ICE
has only tested about 1.25% of the people it holds in custody for COVID-19. Without adequate testing, “a lack of proven COVID-19 cases . . . is functionally
meaningless for determining if there is a risk for COVID-19 transmission in a
community or institution.” March 23 Declaration of Dr. Jonathan Golob (“Golob
Decl.”) at ¶ 7 (ECF No. 2-2); April 27 Declaration of Dr. Judd Walson at ¶ 15
(“in a congregate setting such as the Clinton Correctional Facility, without
universal and periodic testing, there may be many more cases of COVID-19
infection that have remained undetected”) (ECF No. 91-4).
Scientific studies confirm Plaintiffs’ risk. A study released yesterday
modeling the spread of COVID-19 at ICE detention facilities shows that, once
introduced at a facility, 72% to 80% of the detainee population can be expected to become infected within ninety days, with 15.1% hospitalized. See Irvine et
al., Modeling COVID-19 & Impacts on U.S. Immigration & Enforcement (ICE)
Detention Facilities, 2020, J. Urban Health (2020) (forthcoming) (attached as
MTS-Exhibit 7). It may also take a long time to reach the peak at a facility, with
April 4 or Clinton since March 31. ICE’s COVID-19 webpage only reports the number of COVID-19-positive ICE employees, but York, Pike, and Clinton have county employees and have not provided information about how many staff (or detained individuals) have COVID-19 for weeks. See FACC (ECF No. 62). Pike County Prison’s last update is from April 6, 2020. See ECF 61-3. York County Prison’s last update is from April 4, 2020. See York County Prison News Report, (ECF No. 87-3). Clinton County Correctional Facility’s last public update is from March 31, 2020. See March 31, 2020 Clinton News Report (ECF No. 87-4).
6

more populated facilities, like the York facility, taking closer to 70 days or longer. Id. Researchers demonstrate that unmitigated spread of the virus within detention centers will overwhelm local hospitals with COVID-19 patients from these facilities. Id. at 7.
Furthermore, Defendants have repeatedly confirmed that it has no intention of testing staff or detained individuals unless they are symptomatic. See Amon New-Decl. ¶ 37(a), (d) (ECF No. 62-1) (describing how ICE’s current protocols of a verbal screening and temperature check are insufficient given that the “entire state of Pennsylvania is listed as having “widespread” community transmission and that effective screening of staff would have to be “frequent (daily) tests,” which seems unlikely given costs and test shortages).
Because individuals may be infected and act as vectors spreading the virus for days or even weeks while exhibiting mild symptoms or no symptoms at all, awaiting the development of symptoms before acting is a recipe for mass outbreak—which we have already seen at Pike and is virtually guaranteed if Defendants continue to maintain their defiance of basic epidemiological consensus. See Walson Decl. ¶¶ 13, 15. See, e.g., Bent v. Barr, No. 4:19-cv06123, 2020 WL 1812850, at *3 (N.D. Cal. Apr. 9, 2020) (“Given the exponential spread of the virus [and] the ability of COVID-19 to spread through
7

asymptomatic individuals . . . effective relief for [petitioners] may not be possible
if they are forced to wait until their particular facility records a confirmed case.”).4
Unfortunately, the case of Petitioner Idowu is proof of the reality that the
absence of confirmed tests does not mean the virus is not inside the facility. Mr.
Idowu had a cough at the time of release from Clinton but was not tested while at
the facility. See Ms. Idowu Decl. ¶ 4. Given the timing of the onset of his
symptoms, he almost certainly was infected while detained at Clinton, and only
tested positive after he was released and hospitalized. Walson Decl. ¶ 12. He
remains hospitalized, has an active lung infection, and is receiving oxygen. Ms.
Idowu Decl. ¶ 11. Mr. Idowu remains at high risk for potential deterioration and
need for invasive ventilation. Walson Decl. ¶ 14. A medical expert reviewing
Mr. Idowu’s situation indicated that he simply could not be returned to a detention
facility:
In light of Mr. Idowu’s reported current condition, it is impossible for him to surrender for re-detention. He is currently on oxygen and is at high risk for potential deterioration and need for invasive ventilation. He is also at high risk of other complications of COVID19 and will require careful clinical monitoring and care. In addition, patients with COVID-19 continue to shed virus for extended periods (weeks) and he may be a potential transmission risk to other patients and staff.
4 See also Ixchop Perez v.Wolf, 5:19-cv-05191, 2020 WL 1865303, at *12 (N.D. Cal. Apr. 14, 2020) (“The mere fact that no cases have been reported in [a particular facility] is irrelevant—it is not a matter of if COVID-19 will enter the facility, but when it will be detected there.”) (emphasis in original)); Ortuño v. Jennings, No. 3:20-cv-02064, 2020 WL 1701724, at *2 (N.D. Cal. Apr. 8, 2020); Christian A.R. v. Decker, 2:20-cv03600-MCA, slip op. at 3 (D.N.J. Apr. 12, 2020); Bent, 2020 WL 1812850, at *3 (holding that temperature screening “is of limited benefit”).
8

Id. at ¶ 14. His critical health condition lays bare the stark consequences of deficiencies at the facilities. Inadequate testing cannot mask this reality. II. Plaintiffs Are Likely to Succeed on the Merits of Their Claims.
The conditions of confinement at York and Clinton remain unconstitutional. The conditions are unsafe in the face of the COVID-19 pandemic and Plaintiffs’ medical vulnerabilities, imposing punitive punishment not reasonably related to the government’s interest in enforcing immigration laws and violating Plaintiffs’ Fifth Amendment rights. See E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019).
In denying the preliminary injunction with respect to Clinton and York, the District Court gave great weight to Defendants’ improved conditions and new protocol to address COVID-19. ECF No. 89 at 11-14. But courts around the country—and in this Circuit—have repeatedly found that such practices remain inadequate to protect detainees who are particularly vulnerable to COVID-19. See, e.g., Durel B. v. Decker, No 2:20-cv-03430, 2020 WL 1922140, at *8 (D.N.J. Apr. 21, 2020) (“While Respondents have undertaken significant measures to try and prevent COVID-19 from further spreading throughout the facility, those measures appear insufficient to protect Petitioner whose allegedly compromised immune system puts him at greater risk of severe illness”); Jeferson V. G. v. Decker, No. CV 20-3644, 2020 WL 1873018, at *8 (D.N.J. Apr. 15, 2020) (“Although Respondents have delineated the numerous measures they have
9

undertaken to prevent the spread of COVID-19 in HCCC, those measures are insufficient to protect Petitioner whose asthma puts him at higher risk of severe illness from COVID-19.”); see also Hernandez Roman v. Wolf, No. 20-cv-768, 2020 WL 1952656, at *7-8 (C.D. Cal. Apr. 23, 2020) (finding insufficient measures by the government where class members are not required, or even given an opportunity, to socially distance at all times). III. The Balance of Equities Favors Plaintiffs.
Any potential harm to Defendants may face is eclipsed by the serious irreparable injury Plaintiffs face. In assessing any risk of harm to Defendants or the public, Plaintiffs’ status as civil immigration detainees is of critical importance. Individuals with criminal histories, have already served the sentences required by a criminal conviction, if any. Zaya v. Adducci, No. 5:20cv-10921, 2020 WL 1903172, at *6 (E.D. Mich. Apr. 18, 2020) (granting temporary restraining order directing detainee’s release and noting “critically for this case . . . [for a petitioner who has several drug related convictions, as well as convictions for murder and domestic violence], Petitioner has completed his sentences for each of these convictions”).
Petitioners have been at liberty for nearly a month, and all have complied with their release conditions. They know and understand that failure to do so will be fatal to any chance they have of winning their underlying immigration cases. They remain at their respective homes, where they pose no public safety risk. On the other hand, returning them to detention facilities where their risk of contagion
10

is high could be a death sentence. The balance of the equities tips decidedly in favor of issuing a stay until such time as this Court resolves the appeal.

Dated: April 28, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Esq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080) Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David C. Fathi (WA 24893) Eunice H. Cho (WA 53711) AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael Tan (NY 4654208) Omar C. Jadwat (NY 4118170) AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394) Erika Nyborg-Burch (NY 5485578) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org
Cecillia Wang (CA 187782)* Stephen Kang (CA 292280)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0774 E: cwang@aclu.org E: skang@aclu.org

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E: mtan@aclu.org E: ojadwat@aclu.org
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 2,682 words. This brief complies with L.A.R. 31.1(c) because the text of the electronic brief is identical to the text in the paper copies and because a virus-protection program, Metadact has been run on the file and no virus was detected. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Times New Roman 14-pt font.

Dated: April 28, 2020

/s/ Witold J. Walczak Witold J. Walczak
Counsel for Plaintiffs-Appellants

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 Case 1:20-cv-00480-JEJ-MCC Document 165 Filed 06/29/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

ORDER

June 29, 2020

Pending before the Court is Respondents’ Motion to Dismiss or Strike

Claims of Unlawful Final Order [of] Detention from the Amended Petition, (Doc.

140), filed on June 15, 2020. The Motion has been fully briefed by the parties,

(Doc. 141, 158 and 162), and is ripe for our review. For the reasons that follow,

the Motion shall be granted.

Because we write for the benefit of the parties, who are well familiar with

the procedural morass of this complex case, we shall dispense with a detailed

review. Simply put, in March of 2020 this matter was brought as an emergency

habeas corpus petition seeking a temporary restraining order to have certain

individuals in civil immigration detention released due to health concerns arising

from their medical vulnerabilities to the COVID-19 pandemic. Thereafter, on

1

Case 1:20-cv-00480-JEJ-MCC Document 165 Filed 06/29/20 Page 2 of 3
April 17, 2020, Petitioners filed an Amended Petition, ostensibly transforming the case into a putative class action seeking class-wide injunctive relief. Moreover, and relevantly, included in the Amended Petition as Count II are the individual claims of Petitioners Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F., alleging that their continued detention is unconstitutional under Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
In the instant Motion, Respondents seek to have these six individual Zadvydas claims stricken or dismissed from the Amended Petition without prejudice to them being refiled as individual habeas corpus petitions pursuant to 28 U.S.C. § 2241. Notably, a few days prior to the filing of the instant Motion, the parties had filed a stipulation seeking the Court to have the individual Zadvydas claims referred to one or several Magistrate Judges of this Court for resolution. This stipulation clearly reflects the parties’ understanding that the substance of Zadvydas claims is separate and distinct from the conditions of confinement claims that are the main thrust of the Amended Petition.
While the Court could execute the parties’ stipulation and send the six individual claims to one or several Magistrate Judges for review followed by a report and recommendation, we think it prudent for the management of this already unwieldy docket to dismiss the claims from the Amended Petition and direct that the six individuals bring six new, separate 28 U.S.C. § 2241 habeas
2

Case 1:20-cv-00480-JEJ-MCC Document 165 Filed 06/29/20 Page 3 of 3
petitions setting for their Zadvydas claims. Petitioners’ counsel should indicate that these new matters are related to the instant case so that they are assigned to the undersigned for resolution. It is our intention to serve judicial efficiency and economy by separating these unrelated and individualized claims from the instant complex putative class action. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Respondents’ Motion to Dismiss or Strike Claims of Unlawful Final Order [of] Detention from the Amended Petition (Doc. 140) is GRANTED as follows:
a. The individual Zadvydas claims of Petitioners Stubbs, Pratt, Ghaffar, Goloverya, Zhuiko, and D.F. as set forth in Count II of the Amended Petition are DISMISSED without prejudice to these six individuals filing six separate 28 U.S.C. § 2241 habeas corpus petitions setting forth their individual Zadvydas claims.
b. Petitioners’ counsel shall mark these new actions as related to the instant case and the Clerk of Court SHALL ASSIGN these anticipated new matters to the undersigned with a random co-assignment to a United States Magistrate Judge of this Court for each case.
s/ John E. Jones III John E. Jones III, Chief Judge United States District Court Middle District of Pennsylvania
3

 
 Case 1:20-cv-00480-JEJ-MCC Document 187 Filed 07/14/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER, et al.,
Plaintiffs, v. CLAIR DOLL, et al.,
Defendants.

: CIVIL NO. 1:20-CV-480 : : : : (Chief Judge Jones) : : (Magistrate Judge Carlson) : : :

ORDER

The background of this order is as follows:

This case, a hybrid putative class action and habeas corpus proceeding

brought on behalf of a class of immigration detainees, was referred to the

undersigned for the resolution of discovery disputes and related issues. (Doc. 160).

One such discovery dispute is now before us concerning the plaintiffs’ deposition of

the defendants’ expert witness, Dr. Lubelczyk. This deposition took place on July

10, 2020, shortly prior to the hearing before Chief Judge Jones, scheduled for

Tuesday, July 14, 2020. While the defendants initially objected to this request, given

the limited discovery permitted in habeas actions, they agreed to have Dr. Lubelczyk

sit for a deposition, provided she was paid her customary fee in advance of the

deposition. We held a telephonic conference with the parties concerning this

discovery dispute on July 8, 2020 and at the conclusion of that conference ordered

Case 1:20-cv-00480-JEJ-MCC Document 187 Filed 07/14/20 Page 2 of 5
the deposition to go forward on July 10 with a partial pre-payment of the doctor’s fees.
The parties are now embroiled in yet another discovery dispute relating to this deposition. It seems that during the deposition the doctor referred to notes she had prepared. Plaintiff-petitioners’ counsel sought production of those notes, and government counsel refused to produce the notes, asserting that they were privileged. This dispute then blossomed into a matter requiring our attention on the afternoon of July 13, less than 24 hours before the hearing is scheduled before the district court, when the government filed a motion for protective order. (Doc. 183). With respect to the question of the discoverability of these expert witness notes, the parties take starkly contrasting positions, which we are asked to address and resolve in the abstract without the benefit of any review of the disputed material. The plaintiff-petitioners argue that these notes are clearly discoverable because they reflect “facts or data considered by the witness in forming” her expert opinion. Fed. R. Civ. P. 26(a)(2)(B)(ii). In contrast, the government argues that these notes are, in essence, a draft report and contain communications between the expert and counsel, all of which the government contends is cloaked in privilege. Fed. R. Civ. P. 26(b)(4)(B)-(C). These contrasting positions are presented to us in a factual vacuum. We do not have, and have not seen, the disputed notes. Indeed, it is unclear how extensive these notes may be.

Case 1:20-cv-00480-JEJ-MCC Document 187 Filed 07/14/20 Page 3 of 5
Simply put, due to the exigencies of this litigation, the fast-paced nature of this case, and the expedited timing of Dr. Lubelczyk’s deposition, no one has had sufficient time to either: (1) prepare a privilege log, (2) provide the court with the disputed notes, or (3) fully brief these legal issues regarding the scope of the privilege in this setting. We do not fault counsel for not having completed these steps. Quite the contrary, all counsel have worked with exemplary dispatch given the expedited timetable prescribed by the court. However, in our view, a fully informed evaluation of these privilege claims would require, at a minimum, production of the notes to the court and review of the disputed notes by the court prior to any disclosure, a task which cannot be undertaken today, just hours prior to the hearing scheduled in this case.
Accordingly, with the court’s ability to resolve this eleventh hour dispute hobbled by the unusual exigencies of this litigation, IT IS ORDERED that the motion for protective order is GRANTED, in part, and DENIED in part as follows:
First, Dr. Lubelczyk is ORDERED to bring her notes to the hearing scheduled before Chief Judge Jones on July 14, 2020, and the witness and government counsel are further ORDERED to review the notes prior to the hearing to identify those “facts or data considered by the witness in forming” her expert opinion that are set forth in the notes.

Case 1:20-cv-00480-JEJ-MCC Document 187 Filed 07/14/20 Page 4 of 5
Second, the witness and government counsel shall review the notes to identify those matters set forth in the notes which constitute drafts of the report and contain communications between the expert and counsel which are not subject to disclosure. Fed. R. Civ. P. 26(b)(4)(B)-(C).
Third, to the extent that this review identifies items that are not cloaked in privilege, those items should be disclosed. To the degree that the review leads the government to conclude that certain notes are privileged, those items may be withheld, subject to later in camera inspection by the court, if necessary.
Fourth, government counsel shall produce the notes, which are estimated to be approximately 10 pages in length, as well as the expert’s draft report, for the court’s in camera review by 10:30 a.m. on July 14, 2020.
While government counsel are ORDERED to undertake these preliminary efforts, in order to be able to fully address these disclosure questions at the hearing scheduled before Judge Jones later today, we will DENY any request for wholesale disclosure of these notes at this time, without prejudice to the parties seeking further relief from the district court in the course of the hearing itself and without prejudice to our further in camera inspection of disputed records, if such an inspection is feasible under current time constraints.

Case 1:20-cv-00480-JEJ-MCC Document 187 Filed 07/14/20 Page 5 of 5
So ordered this 14th day of July 2020 at 9:50 a.m.
S/Martin C. Carlson Martin C. Carlson United States Magistrate Judge