By Alyssa Aquino

Law360 (April 30, 2020, 2:09 PM EDT) -- Constitutional law professors and public health professionals are calling on the Ninth Circuit to allow immigrants' staged release from the crowded Adelanto detention center, saying the detainees' risk of contracting COVID-19 increases each day they're in the facility.

A California federal judge's injunction order mandating that U.S. Immigration and Customs Enforcement significantly lower the 1,300 detention population at the Adelanto, California, facility was warranted in light of ICE's "deliberate indifference" to detainees' inability to shield themselves from the coronavirus, the experts said in a Wednesday amicus brief. The detainees have alleged in a class action lawsuit that their confinement at the center is a "death sentence."

"ICE cannot lawfully seize people, subject them to a substantial risk of exposure to the coronavirus, deny them any ability to protect themselves, and then disclaim responsibility for their fate," the experts said. "Yet that is exactly what has happened at Adelanto Detention Center."

The experts' missive came one week after the appeals court paused the lower court injunction for appellate review. 

But the professors said the detainees gave enough proof that their constitutional rights had been violated by the conditions of their detention. And to protect the detained individuals' rights, U.S. District Judge Terry J. Hatter issued the only appropriate relief: an injunction forcing ICE to reduce the detention population in stages until the remaining detainees are able to social distance.

Within the public health field, there is a "broad consensus" that social distancing is the most important measure to prevent the spread of COVID-19, according to the amicus brief. 

But at Adelanto, it is physically impossible for every single current detainee to maintain a safe distance from each other, Judge Hatter found. 

In their initial complaint, the detainees claim they are forced to sleep four to eight people in rooms as small as 8 by 10 feet, and that they themselves are responsible for cleaning the facility's common spaces and disinfecting the shared items, for which they're given limited cleaning supplies.

The allegations paint a picture of the severe risk that COVID-19 will tear through the detention facility — a risk so high that the conditions of the detention amount to an unlawful punishment, the experts said Wednesday.

The experts pointed to a recent study predicting how COVID-19 would spread in U.S. detention centers, including the Adelanto center. The study estimates that under the best conditions, 72% of Adelanto's current population would contract COVID-19 within 90 days and the local public health system would be overwhelmed with Adelanto patients, the experts said.

Viewing these conditions, Judge Hatter ordered the immediate reduction of the Adelanto detention population, which the experts said was appropriate in light of the health issues.

But staying that order would be a gamble that would "drastically increase the odds that Adelanto will be overwhelmed by a coronavirus outbreak while this case languishes on appeal," the experts said.

Kaplan Hecker & Fink's Joshua Matz, who represents the experts, said Thursday that due to the large number of people confined in Adelanto, ICE cannot stave off COVID-19 by releasing individuals on a case-by-case basis. 

The conditions at the center put detainees at a heightened risk of contracting the virus, he said. "It is striking that dozens of public health experts have expressed horror at the conditions at Adelanto while the government can't even scrounge up a single independent expert to say that it's response is good enough," Matz said.

ICE did not immediately respond to Thursday requests for comment. 

The experts are represented by Joshua A. Matz, Kyla Magun, Dylan Cowit and Michael Skocpol of Kaplan Hecker & Fink, and Mark Rosenbaum, Judy London, Talia Inlender, Jesselyn Friley and Amanda Savage of Public Counsel. 

The government is represented by Victor M. Mercado-Santana of the U.S. Department of Justice's Civil Division, by Jeffrey S. Robins of the DOJ's Office of Immigration Litigation and by Daniel A. Beck and Hillary Morgan Burrelle of the U.S. Attorney's Office for the Central District of California.

The case is Kelvin Hernandez Roman et al v. Chad F. Wolf et al., case number 20-55436, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Abbie Sarfo.

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