By Dave Simpson

Law360 (September 22, 2020, 7:13 PM EDT) -- A California federal judge certified a class of detainees in a suit challenging COVID-19 safety conditions at U.S. Immigration and Customs Enforcement's Adelanto, California, detention center, ruling Tuesday that all the members share a Fifth Amendment substantive due process claim.

U.S. District Judge Terry J. Hatter Jr. found that the detainees did in fact establish commonality, typicality and adequacy as required for certification, despite arguments to the contrary from the government.

"As to commonality, the specific reason why each class representative or putative class member is being detained is immaterial, here," he said. "The issue before the court is whether the manner of their detention — the conditions of their confinement — violates their Fifth Amendment substantive due process rights."

The August bid for certification, and arguments pertaining to the bid, are sealed.

Individuals detained at the Adelanto facility filed suit against ICE on April 13, saying the agency was risking their lives by refusing to alter the conditions in which they are kept in the face of the global coronavirus crisis.

"For many of the detained currently trapped at the facility, the government's refusal to act will be a death sentence," they said.

At the Adelanto facility, four to eight people are forced to sleep in cells as small as 8 by 10 feet, and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower's button, the detainees said.

The detained individuals are also responsible for cleaning the facility's common spaces and shared items, for which they are given limited cleaning supplies, the complaint alleges.

In April, Judge Hatter ordered ICE to immediately lower the number of people held at its Adelanto center in light of the government's "callous disregard" for prisoner safety amid the coronavirus pandemic.

The California court also ordered ICE to enact all measures recommended by the CDC to prevent the transmission of COVID-19 at the Adelanto facility.

"All detainee common areas and shared items ... shall be cleaned and disinfected by a professionally trained cleaning staff with appropriate equipment and supplies on a regular basis whenever those common areas and shared items are accessible to detainees," the court ordered.

Judge Hatter also ordered ICE to provide, at no cost to the detainees, sufficient supplies of masks, gloves and hand soap.

The Ninth Circuit stayed the preliminary injunction pending appeal but later allowed the parts of the order related to CDC guidelines to continue.

In August, the detainees argued that ICE is violating the parts of the preliminary injunction that were not stayed.

The detainees said in a motion to enforce the preliminary injunction that despite the California federal court's April order that the center should follow pandemic response guidelines laid out by the U.S. Centers for Disease Control and Prevention, ICE is making its own rules.

"They have continued to introduce new individuals into Adelanto and send others out irrespective of the CDC's transfer limitations, as part of routine immigration enforcement," they said. "From March 1 to July 15, 2020, defendants have transferred 102 individuals into Adelanto from facilities with confirmed COVID cases at the time of the transfer or within two weeks after the transfer."

Additionally, despite receiving a May shipment of about 1,900 COVID-19 tests — enough to test the entire population of the detention center and its staff — ICE has "shockingly" stopped its comprehensive testing program at the center, the detainees said. Even symptomatic detainees can't get tests, the motion claimed, noting that only one of the 305 detainees with symptoms has been tested.

"Defendants' failure to test even symptomatic individuals ... despite having enough tests to do so, violates both the CDC guidance and common sense," the motion stated.

The detainees are represented by Jessica Karp Bansal, Ahilan Arulanantham and Michelle (Minju) Cho of the ACLU Foundation of Southern California and Samir Deger-Sen, William M. Friedman, Amanda Barnett and Jessie Cammack of Latham & Watkins LLP.

The government is represented by Victor M. Mercado-Santana of the U.S. Department of Justice's Civil Division, Jeffrey S. Robins of the DOJ's Office of Immigration Litigation and 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 5:20-cv-00768, in the U.S. District Court for the Central District of California.

--Additional reporting by Alyssa Aquino. Editing by Daniel King.

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