By Khorri Atkinson

Law360, Washington (April 21, 2020, 9:52 PM EDT) -- A D.C. federal judge pushed back Tuesday against a request to immediately release a group of asylum seekers from detention in Louisiana amid the COVID-19 pandemic, agreeing with the government that such relief is outside the scope of their underlying complaint.

U.S. District Judge James E. Boasberg told attorneys for a class of about 1,000 detainees during a teleconference hearing that he has already granted the relief sought in their original complaint through a preliminary injunction in September ordering the New Orleans Immigration and Customs Enforcement field office to stop flouting a 2009 Obama-era asylum directive. That rule allows asylum-seekers to be released from detention on humanitarian parole after they have shown a credible fear of returning home.

"I have to be careful not to afford relief outside the scope of this suit," the judge asserted, adding that the original complaint lodged in May isn't challenging ICE over the condition of its facilities. "I'm not a free-ranging judicial agent able to impose whatever remedy."

Judge Boasberg at one point seemed to suggest that a California federal judge has separately issued a "principle form of relief" late Monday in a proposed class action, which he said appears to cover some of the New Orleans detainees. That suit accuses ICE of shirking its legal obligation to provide adequate medical, mental health and disability accommodations at 158 detention facilities nationwide.

In the California case, which predated the coronavirus pandemic, U.S. District Judge Jesus G. Bernal ordered ICE to promptly evaluate and potentially release thousands of immigrant detainees who are at a higher risk of contracting the virus or dying from it. Judge Bernal also certified two subclasses of high-risk detainees and issued a preliminary injunction requiring ICE to "make timely custody determinations" regarding those detainees, in particular those who are older or pregnant.

Within 10 days of the order — or within five days of any future detentions — ICE must identify and track any detainees at its facilities across the country who are at higher risk of infection or complications, the California district judge ruled. And he said the deficiencies at ICE's detention centers have persisted more than a month into the pandemic, and the "evidence suggests systemwide inaction that goes beyond a mere 'difference of medical opinion or negligence.'"

Luz Virginia López of the Southern Poverty Law Center, which is also representing detainees in the California case, insisted that "the remedy portion [of the California case] is applicable and analogous to what we're seeking" from Judge Boasberg.

But the D.C. district court interjected that a ruling from him would be duplicate and he's still uncertain what he can do.

According to López, the government is not only violating Judge Boasberg's September injunction because ICE hasn't been keeping an accurate record of asylum parole denials, but ICE is also not following the agency's own April 3 guidance on its response to the COVID-19 pandemic concerning immigration enforcement such as check-ins and removals.

The attorney maintained that ICE should be ordered to take into account the chronic health conditions and other factors of detainees who are at a higher risk of contracting COVID-19. Without knowing the number of detainees who may be qualified for release under the COVID-19 risk factors and those were also denied parole, López contended that "we would never know whether the government is truly in compliance."

For the government to only disclose it has granted 38 parole without indicating how many applications have been denied is unacceptable, she said. The attorney said lawyers for the plaintiffs have identified at least 70 other detainees who are eligible for release.

Judge Boasberg, too, had called the accuracy of ICE's parole data into question. He told the government during a hearing in January that the "staggering" numbers in the data handed over by immigration officials were "pretty terrible" and may be building a case for contempt. The data implied that the New Orleans office is still flouting his order, the judge said.

The office was found to deny 98.5% of parole requests in 2018 and 100% in 2019, according to the plaintiffs. This, compared to a 75% grant rate in 2016.

But during Tuesday's hearing, Judge Boasberg said while he understands the urgency of the plaintiffs' desire to push for review and release as COVID-19 cases continue to rise nationwide, including in detention facilities, their current request "is a little bit of a stretch."

"I don't see how I'm empowered to offer you that kind of relief in the context of this lawsuit," he added. 

López later acknowledged the judge's concerns and said the plaintiffs will soon file a motion to hold ICE in contempt of the September order. The judge didn't say when he would issue a ruling on the pending request before him but said a motion for contempt would be the appropriate recourse.

According to court filings, there are 44 confirmed COVID-19 cases across eight detention centers in Louisiana and Mississippi that are under the New Orleans ICE field office's jurisdiction, as well as 13 cases among ICE employees working at the Alexandria Staging Facility in Louisiana.

Government attorney Jeremy Simon repeatedly denied allegations that ICE is violating the court's order and is not following the agency's COVID-19 guidance. 

The plaintiffs are represented by Luz Virginia López, Michelle Gonzalez and Victoria Mesa-Estrada of the Southern Poverty Law Center, and Bruce Hamilton of the American Civil Liberties Union of Louisiana Foundation.

The government was represented by Jeremy Simon of the U.S. Attorney's Office for the District of Columbia.

The case is Heredia Mons et al. v. McAleenan et al., case number 1:19-cv-01593, in the U.S. District Court for the District of Columbia.

--Additional reporting by Nadia Dreid and Hailey Konnath. Editing by Amy Rowe.

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