NJ Immigrant Detainees Get Class Cert. In COVID-19 Suit

By Dorothy Atkins
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Law360 (November 24, 2020, 5:20 PM EST) -- A New Jersey federal judge on Monday certified a class of Elizabeth Detention Center immigrant detainees who allege the government has violated federal COVID-19 safety guidelines by holding them in cramped quarters that are allegedly perfect for spreading the virus, but held off on deciding the merits of the claims.

In a 29-page order, U.S. District Judge Esther Salas certified a class of individuals who are or have been held in civil immigration detention at the Elizabeth Detention Center, which is run by the private prison operator CoreCivic Inc.

The judge concluded that the detainees can proceed on a class-wide basis with their allegations that immigration officials violated the so-called Accardi principle — an obligation the U.S. Supreme Court established in United States ex rel. Accardi v. Shaughnessy for agencies to follow their own applicable regulations.

"If respondents are violating the Accardi principle against one, they are violating the Accardi principle against all," the order said. "If not against one, then none. And an order declaring such a violation would apply generally and equally benefit the class."

The ruling is the latest chapter in a class action that six detainees launched against top federal immigration officials and the center's warden, Orlando Rodriguez, in May after they were detained at the detention center in Elizabeth, New Jersey.

The detainees allege their health status puts them at a higher risk of contracting a serious and potentially life-threatening case of COVID-19, and according to their attorneys, the facility's dorms are cramped and filthy, with the toilets sitting next to dormitory beds. There are also no windows and little ventilation in the areas accessible to detainees, the attorneys have said.

The lawsuit sought to certify a class of detainees who claim that their due process rights have been violated and that the agency violated the Accardi principle by purportedly ignoring COVID-19 safety guidelines outlined by the U.S. Centers for Disease Control and Prevention and accepting detainees who live in close proximity where the virus can spread easily.

The detainees asked the court to release or hold bond hearings for the immigrants and for the government to stop admitting new detainees to the center.

But in her order Monday, Judge Salas said district courts have limited authority in granting class-wide injunctive relief on removal proceedings, noting that ordering release or bond hearing on a class-wide basis would render the federal mandatory detention statutes "constitutionally inoperative."

The judge also said the detainees' due process claims aren't typical of the proposed class because each detainee has different medical conditions that require individualized treatment and "render maintaining a class not reasonably economical."

The judge added that the detainees can't obtain an injunction prohibiting the Elizabeth Detention Center from accepting new inmates for the same reason.

However, Judge Salas ruled that the claims over the Accardi principle can be litigated on a class-wide basis.

"Petitioners — all of whom were detained at EDC at least at some point during the period that respondents were allegedly violating the Accardi principle — are in sufficiently similar positions to the rest of the class in both legal form and factual basis to support that claim," the order said.

Additionally, the judge rejected the government's argument that the six detainees' claims are moot because some of the petitioners have been released or deported. The judge pointed out that at least two petitioners are still being detained and the detainees who were released were still being held at the center when they filed the class certification motion.

Judge Salas asked the parties to submit additional briefing on the Accardi claims before deciding the merits.

Counsel for the detainees, Lauren Major of the American Friends Service Committee's Immigrant Rights Program, said in a statement Tuesday that the government's refusal to release immigrants from the Elizabeth Detention Center's "cramped, squalid conditions during an unprecedented and escalating public-health crisis is morally and legally indefensible."

"We welcome the court's scrutiny of [U.S. Immigration and Customs Enforcement's] failure to adhere to its own policies, and we look forward to holding the government to account in court," Major said.

CoreCivic spokesperson Amanda Gilchrist said in an email Tuesday that the company "rigorously" follows government health guidance and CDC guidelines, which she noted have evolved since the onset of the pandemic.

"We're continuing to work closely [with] our government partners to enhance procedures as needed," she said.

Representatives for the government didn't immediately respond to requests for comment Tuesday.

As of May, 18 detainees at the center had tested positive for the coronavirus.

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 Lauren Major, 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 for the District of New Jersey.

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

--Editing by Daniel King.

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

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