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Law360 (March 27, 2020, 7:03 PM EDT) -- Two New York federal judges have ordered U.S. Immigration and Customs Enforcement to immediately release 14 detainees at four correctional facilities in New Jersey and New York, finding that the agency can't adequately protect them from the coronavirus outbreak.
U.S. District Judge Analisa Torres said Thursday night that the detainees at correctional facilities in Hudson, Bergen and Essex County, New Jersey, have various medical conditions, including respiratory problems, heart disease, diabetes and history of pneumonia that put them at greater risk for death or serious injury from the coronavirus, warranting their release.
The precautions being taken by ICE to protect detainees from the virus, including isolating detainees who report symptoms, offering inmates hand sanitizer and cleaning facilities more frequently, are not enough to protect them, according to Torres' temporary restraining order that also instructed ICE not to arrest any more immigrants for detention until April 9.
"The spread of COVID-19 is measured in a matter of a single day — not weeks, months or years — and respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness," Judge Torres said, adding that the Centers for Disease Control and Prevention recommended individuals stay six feet apart to stop the spread of the virus.
But ICE has not indicated that detention facilities can adhere to the CDC's recommendation to keep inmates six feet apart and has not supplied the court with a plan for how the agency will protect detainees who have compromising medical conditions from coronavirus exposure, she said.
"Public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions," Judge Torres said.
Judge Torres cited a Law360 article reporting on a Massachusetts federal judge's order for an immigrant to be released from ICE custody by Thursday. U.S. District Judge Mark L. Wolf said in his order, which Judge Torres quoted, that jails, where social distancing and repeated hand washing is difficult to do, enhance the risks of the coronavirus.
U.S. District Judge Alison J. Nathan on Friday echoed Judge Torres' words by ordering four detainees at jails in Essex and Bergen County, New Jersey, and Orange County, New York, to be released, saying ICE has failed to take steps to protect high-risk detainees from COVID-19.
"It is clear that the government's interest — and thus the public interest — in petitioners' continued detention is far outweighed by the public interest in their release in light of the rapidly evolving public health crisis engendered by the spread of COVID-19," Judge Nathan said.
Judge Torres and Nathan's orders came only a few days after the New Jersey Supreme Court approved a deal between prosecutors and defense lawyers to have hundreds of New Jersey jail inmates released to tackle the risks posed by the virus.
The state court's order applies to individuals who are in jail for third- or fourth-degree crimes or disorderly persons offenses and does not affect state prison sentences, according to a statement Monday from state judiciary officials.
Detainees' attorney Andrea Saenz of Brooklyn Defender Services said in a statement Friday that Judge Torres' order is a huge victory for her clients.
"This is the first federal court in the nation to find that ICE is showing deliberate indifference to the safety of detained people who have medical conditions putting them at high risk if they contract COVID-19 — so much that their detention is likely unconstitutional and they must be immediately released," Saenz said.
Detainees' attorney Aadhithi Padmanabhan of the Legal Aid Society said in a statement Friday that Judge Nathan's order "makes it clear that ICE cannot continue to recklessly endanger the lives of our clients or fail to take any steps to protect medically vulnerable individuals in its care and custody."
Counsel for the government did not immediately respond to a request for comment Friday.
The detainees are represented by Andrea Saenz, Alexandra L. Lampert, Hannah McCrea, Mary S. Van Houten Harper and Brooke Menschel of Brooklyn Defender Services, Suchita Mathur and Zoe Levine of the Bronx Defenders and Janet E. Sabel, Adriene Holder, Hasan Shafiqullah, Lilia Toson, Julie Dona and Aadhithi Padmanabhan of the Legal Aid Society.
The government is represented by Michael James Byars of U.S. Attorney's Office for the Southern District of New York.
The cases are Basank et al v. Decker et al., case number 1:20-cv-02518, and Coronel et al v. Decker et al., case number 1:20-cv-02472, both in the U.S. District Court for the Southern District of New York.
--Additional reporting by Bill Wichert. Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
