Immigrant Deported Right As Judge Halts ICE's Removal Plan

By Alyssa Aquino
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Law360 (May 20, 2020, 6:52 PM EDT) -- An immigrant seeking to empty a New Jersey facility with conditions that are "perfect" for the spread of COVID-19 was removed to Mexico on the same day a federal judge barred U.S. Immigration and Customs Enforcement from deporting him, his attorneys said on Wednesday.

Hector Garcia Mendoza was flown from the private Elizabeth Detention Center in New Jersey to Texas for removal early on Tuesday, as his advocates were pressing a New Jersey federal judge to issue an emergency stay on his deportation. Later that day, ICE sent Garcia Mendoza across the southern U.S. border and cut off contact with him, making him unreachable to his attorneys, according to the NYU School of Law Immigrant Rights Clinic co-director Alina Das.

Das said that Garcia Mendoza's attorneys are unsure if his removal came after 6 p.m. Eastern time, when U.S. District Judge Brian R. Martinotti granted the emergency relief, and are trying to obtain that information.

But one thing Das is sure of: Garcia Mendoza's removal came right after he and three others filed a lawsuit on Friday to escape what they claim is certain death from COVID-19.

"We are not aware of the government moving so quickly… in deporting people, and here we have someone who was a named plaintiff in a class action lawsuit who gets placed in the deportation process the next day," Das said.

The Monday after the litigation began, ICE informed the court that it intended to deport Garcia Mendoza "in the immediate future." The notification was the first time Garcia Mendoza, who represented himself at his removal proceedings and has difficulty hearing, understood that an immigration judge issued a final removal order, Das said.

ICE didn't immediately respond to requests for comment.

Garcia Mendoza had been held at the Elizabeth Detention Center, which is run by private prison operator CoreCivic, since March. According to a CoreCivic announcement last week, a security officer at the New Jersey facility has died of COVID-19.

Garcia Mendoza has asthma and has experienced chest pain and shortness of breath, which have gone untreated at the facility, according to his advocates from the Immigrant Defense Project and First Friends of New Jersey & New York.

Also held in the Elizabeth Detention Center is Rizza Jane Guanao Aganan, a named plaintiff in the lawsuit filed Friday who has a rare genetic metabolic abnormality that causes a breakdown in red blood cells.

These conditions render Garcia Mendoza and Aganan at a higher risk of contracting a serious case of COVID-19, the advocates said. Eighteen detainees at the Elizabeth Detention Center have tested positive for the coronavirus, attorneys for the detainees said when announcing Friday's lawsuit.

According to advocates and friends in a teleconference, the facility's dorms are cramped and filthy, with the toilets sitting next to dormitory beds. A First Friends advocate who toured the facility several times said there are no windows and little ventilation in the areas accessible to detainees.

Dr. Allen Keller, who directs the NYU School of Medicine Center for Health and Human Rights, said he can think "of no more perfect environment for the spread of COVID-19."

Keller further points out that he has visited 20 detention facilities across the country and the Elizabeth facility is "the most inhumane," a distinction that renders it particularly dangerous during a pandemic.

The detainees leading the proposed class action claim that the conditions of their detention violate their due process rights. The alleged constitutional violations can only be addressed through the immediate release of everyone held at the Elizabeth facility, or, alternatively, through expedited bail hearings.

They are also seeking a court order barring ICE from admitting new people into the facility and from transferring individuals to other detention centers.

"The appalling conditions at [Elizabeth Detention Center] are like a death sentence for hundreds of parents, grandparents, and community members," Immigrant Defense Project Executive Director Alisa Wellek said in a statement on Friday announcing the suit.

CoreCivic spokesperson Ryan Gustin told Law360 on Wednesday that there have been 17 confirmed cases of the coronavirus among the Elizabeth facility's staff. He didn't specify how many detainees have tested positive for the virus.

Gustin said that the company encourages social distancing in all of its facilities and that CoreCivic has put in place action plans at each of the centers. The plan calls for medical staff to identify people at high risk of contracting COVID-19, isolating and testing them.

As of May 13, two individuals have died from the virus while in ICE custody, and 943 people have tested positive for the virus out of 1788 tested. However, epidemiologists have estimated that at least 70% of people held by ICE will contract the virus, the advocacy organizations said.

The detainees are represented by Brittany Caryl Castle of the Immigrant Defense Project, Michael P. Daly and Marsha Jessica Indych of Faegre Drinker Biddle & Reath LLP and Matthew Anthony Johnson and Joelle Lingat of the American Friends Service Committee.

The federal government is represented by Enes Hajdarpasic, Kristin Lynn Vassallo and John Andrew Ruymann of the U.S. Attorney's Office of New Jersey.

The case is Aganan et al. v. Rodriguez et al., case number 2:20-cv-05922, in the U.S. District Court for the District of New Jersey.

--Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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