Law360 (March 31, 2020, 10:11 PM EDT) -- As the coronavirus pandemic has infected more than 180,000 people in the U.S., federal judges have fielded requests from individuals in immigration detention centers, which feature close quarters and allegedly shoddy medical services, to be temporarily released from custody.
U.S. Immigration and Customs Enforcement has resisted calls to release low-risk immigrants, who are in custody for civil offenses, and even wavered in its commitment to not to arrest people without criminal convictions — forcing advocates to turn to federal courts for help, with varying results.
So far, four immigrants in New Jersey and five staffers at detention centers in New Jersey, Texas and Colorado have tested positive for COVID-19, the disease caused by the virus, according to ICE.
The American Civil Liberties Union has filed lawsuits in Washington state, Maryland, Pennsylvania, Massachusetts and New Jersey and two in California and will be filing more, according to Naureen Shah, senior advocacy and policy counsel for the ACLU.
Tania Linares Garcia, a senior attorney at the National Immigrant Justice Center, said on a Tuesday call with reporters that her organization has filed dozens of requests for release over the past few weeks, with only a handful granted so far.
Here, Law360 takes a look at the most important court rulings allowing or rejecting calls to release ICE detainees during the coronavirus pandemic.
Families and Kids
Federal judges in Washington, D.C., and California have ordered the federal government to "make every effort" to release unaccompanied children and family units from custody but have stopped short of ordering their release, as advocates had requested.
On Saturday, U.S. District Judge Dolly Gee of California ordered the government to show that it is working toward releasing migrant children, who are referred to the U.S. Department of Health and Human Services' refugee office if they enter the U.S. without a parent, to sponsors and family members.
"The interests of all parties and the public are not well served at this time by rushing to release minors en masse in the midst of the current travel restrictions or to release them to potentially unfit custodians based on limited information, particularly given the possibility of contagion via public transportation, or introducing healthy children to homes where they could be at a higher risk of infection," Gee wrote in her order.
Four children in the care of HHS' Office of Refugee Resettlement in New York have been diagnosed with COVID-19, as well as five staff members and one staff contractor in several facilities in the state. One staff member in Texas and one foster parent in Washington State have also tested positive for COVID-19, the agency said.
Two days after Judge Gee's ruling, a D.C. federal judge ordered the U.S. Department of Homeland Security to provide parents at three family detention centers "the same protocols and procedures as ordered for the children" in Judge Gee's case.
The government must also provide the court a report of the capacity of those centers, a videotape of living conditions there and an update on its compliance with the Centers for Disease Control and Prevention's guidance by April 6.
The D.C. lawsuit, brought by three dozen migrant families represented by the Rapid Defense Network, had described conditions at the family detention facilities as a tinderbox that puts families' lives at risk.
Recently Arrested Immigrants
Attorneys with Public Counsel and Kaplan Hecker & Fink LLP won the release on Friday of two immigrants held in ICE's Adelanto, California, detention facility who had been arrested by ICE during sweeps conducted in the midst of the coronavirus pandemic.
Pedro Bravo Castillo, a 58-year-old who has had kidney stones, arthritis and a hernia, and Luis Vasquez Rueda, a 23-year-old recovering from a facial fracture, were arrested by ICE on March 16 and 17 in Los Angeles.
Their attorneys argued that ICE had violated their clients' due process rights by continuing to conduct raids and put more people in detention during a pandemic.
"Respondents, who ordered and carried out the raids that brought Petitioners to Adelanto, knew better than to subject Petitioners to the risk of disease and death inherent in arrest and detention during a global pandemic. They failed to follow the basic public health protocols that have been broadcast all over the world as necessary to halt the spread of COVID-19," the suit says.
The suit also notes that the Adelanto detention center has a "documented track record of uncorrected health and safety violations." DHS' inspector general found in a 2018 report that immigrants held in the facility, which is run by private prison giant GEO Group, are handcuffed and shackled, lack access to medical care and live in cells with nooses hanging from the vents.
One day after their attorneys filed an emergency suit, a California federal judge ordered that they both be released.
"In the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The government cannot act with a callous disregard for the safety of our fellow human beings," U.S. District Judge Terry J. Hatter Jr. wrote.
The judge also noted that the Ninth Circuit, which encompasses California, had also released a detained immigrant in light of the public health crisis in a sua sponte order, or without either side requesting it.
Mark Rosenbaum, Public Counsel's directing attorney, said in a statement that he hopes ICE "will come into compliance with the CDC and every government on the planet and do its part to prevent the spread of this deadly virus" by releasing people in civil detention.
"It shouldn't require the filing of a lawsuit to bring ICE into conformity with the rest of the nation, but if we have to we'll continue filing these lawsuits," he said.
Some federal judges have ordered releases of groups of immigrants at once. On Tuesday, a federal judge in Pennsylvania ordered ICE to immediately release a group of 10 detainees with chronic medical conditions, including diabetes and leukemia, held at three detention facilities in the state.
The federal government had contended that the detainees couldn't sue, arguing that they had not been harmed, but U.S. District Judge John Jones III said he would not wait "until the pandemic erupts in our prisons" to step in, finding that the 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," he wrote. "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. "
Last week, two New York federal judges ordered ICE to release a total of 14 immigrants held in detention facilities in New York and New Jersey.
On Thursday, U.S. District Judge Analisa Torres ordered 10 detainees with medical conditions to be released from jails in Hudson, Bergen and Essex County, New Jersey, the facilities where the detainees with confirmed cases of COVID-19 were housed.
"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 in her opinion.
The next day, U.S. District Judge Alison J. Nathan four more detainees in Essex and Bergen County, New Jersey, and Orange County, New York, released.
Not all federal judges have been amenable to advocates' requests. Earlier this month, a federal judge in Washington State rejected nonprofits' request to release nine immigrants held at a detention center in Tacoma, an area particularly hard hit in the early days of the coronavirus outbreak in the U.S.
In that case, the ACLU and the Northwest Immigrant Rights Project argued that because the detainees were older or had preexisting medical conditions, it would be cruel to keep them in detention.
U.S. District Judge James L. Robart said the immigrants hadn't shown that the government is trying to punish them by keeping them locked up, and their infection by the virus was only a "possibility" as opposed to a "likely" outcome of their continued detention.
"One judge got it right," Ken Cuccinelli, DHS' acting deputy director, tweeted March 20 in response to a news report on that ruling, "while other judges want to let people out of detention."
Another federal judge in Boston came to a similar conclusion on Monday when he refused to free nearly 150 ICE detainees from a Massachusetts jail, saying that no one in the facility had tested positive for COVID-19.
While U.S. District Judge William G. Young agreed that it would not be appropriate to wait for a total outbreak at the facility, he said that a pandemic "is not a basis for emptying detention facilities or, indeed, emptying prisons."
--Additional reporting by Sarah Martinson, Mike LaSusa, Chris Villani and Matt Fair. Editing by Brian Baresch and Alanna Weissman.
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