Law360 (June 15, 2020, 8:48 PM EDT) -- A Washington state judge has denied a request for temporary release from three U.S. Immigration and Customs Enforcement detainees who claim they are at-risk of catching the novel coronavirus while in detention.
In a Friday decision, Judge James Robart declined to grant a temporary restraining order for the three detainees' immediate release from detention, citing the Tacoma Northwest Detention Center's "comprehensive testing" that has "thus far been effective at preventing a COVID-19 outbreak and containing the virus' spread."
"With only one detainee out of 450 testing positive, and the tested population compromising 80 percent of the total detainee population, the court cannot reasonably conclude that COVID-19 is spreading undetected through the [detention center]," the judge wrote, adding that the court could also not "reasonably find that an outbreak of COVID-19 at the NWDC is likely to occur."
The dispute began in early May, when three detainees with underlying health conditions said they were "risk of serious illness and death so long as they are held in detention" and sued ICE; the ICE field director in Seattle, Nathalie Asher; ICE Deputy Director Matthew Albence; the warden of NWDC; and public health officials.
Jose Castaneda Juarez, 36, and Wilfredo Favela Avendano, 46, who are both Mexican citizens, said they both suffer from "moderate" asthma. Naeem Khan, a 47-year-old citizen of Pakistan, said he suffers from diabetes and that his inability to eat and exercise properly during the COVID-19 pandemic has exacerbated his condition.
Since ICE and the other defendants could not remedy the "grave risk of harm" they say they face due to the coronavirus, their continued detention violates their fifth amendment rights, they said.
But ICE said it began testing everyone who gave consent at the detention center at the end of May and through early June. Of the 561 housed at the NWDC, 449 allegedly tested negative and 111 refused testing. The sole positive case found was a detainee who arrived on May 29 and who was still in two-week isolation, according to the defendants.
According to the agency, the NWDC was currently operating at 40.9% of its typical capacity to allow for social distancing. ICE also claimed it would start testing all detainees arriving at NWDC as part of their intake screening.
Addressing the detainees' claims that the NWDC's sanitary measures were not adequately being implemented and those at the NWDC were still in close contact with one another during meal times, medical appointments, immigration court proceedings and and recreation hours, the judge said the three men failed to show that their Fifth Amendment rights were being infringed or that they would suffer from irreparable harm through continued detention.
This comes after Judge Robart in March tossed another temporary restraining order request from nine detainees of the NWDC, who had argued holding immigrants who are older or have medical conditions puts them at a higher risk of contracting COVID-19.
The virus-related cases in Washington are just part of a wave of litigation around the country vying for the release of detainees amid the outbreak, including detention centers in Florida and Colorado.
Representatives from ICE and counsel for the detainees did not immediately respond to requests for comment Monday.
The detainees are represented by Tim Henry Warden-Hertz, Matt Adams, and Aaron Korthuis of the Northwest Immigrant Rights Project; Lauren Kuhlik, Joseph Longley, and David C Fathi of the ACLU National Prison Project; Enoka Hera, Eunice Cho, and John B. Midgley of the ACLU of Washington; and Omar Jadwat, My Khanh Ngo, and Michael Tan of the ACLU Foundation Immigrants Rights Project.
Nathalie Asher, Matthew Albence and ICE are represented by Matt Waldrop and Michelle R. Lambert of the Justice Department.
Stephen Langford, the NWDC warden, is represented by Joan K. Mell of III Branches Law PLLC.
Public health officials are represented by Susanna M. Buergel, David C. Kimball-Stanley and Darren W. Johnson of Paul Weiss Rifkind Wharton & Garrison LLP, and Robert H. Gibbs of Gibbs Houston Pauw.
The case is Juarez et al. v. Asher et al., case number 2:20-cv-00700, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Mike LaSusa, Nathan Hale and Suzanne Monyak. Editing by Gemma Horowitz.
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