ICE Ordered To Protect Detainees From COVID-19 In Calif. Jail

By Jennifer Doherty
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Law360 (January 6, 2021, 10:41 PM EST) -- A California federal judge on Wednesday extended U.S. Immigration and Customs Enforcement obligations under court-mandated COVID-19 safety measures at a jail where more than 100 people have tested positive for the disease.

U.S. District Judge Vince Chhabria issued another ruling in favor of a group of detained migrants who say the agency has subjected them to "extraordinarily dangerous conditions" at Yuba County Jail and the Mesa Verde ICE Processing Facility, which is run by private prison contractor GEO Group Inc.

Wednesday's preliminary injunction follows a temporary restraining order Judge Chhabria granted on Dec. 23 and previous criticisms by the judge regarding ICE's "cavalier" attitude toward detainees' safety and misrepresentations to the court.

The restraining order, which became Wednesday's injunction, directs ICE to carry out a number of basic safety measures including frequent testing, isolating detainees who test positive or experience COVID-19-like symptoms, sanitizing cells before placing immigration detainees in them, and providing disposable masks daily.

"Past experience in this case shows that a court order is necessary to ensure these sorts of safety measures are actually implemented," Judge Chhabria said in the Dec. 23 order.

ICE disputed the court's finding that it had acted with deliberate indifference or that the order was necessary, but did not object to extending the restraining order as a preliminary injunction. ICE said that either 103 or 117 of the 220 state inmates housed at the jail and 7 of 20 ICE detainees had tested positive for COVID-19 in its Monday status report, which it is required to provide daily under the injunction.

Deputy Public Defender Emi MacLean of the San Francisco Public Defender's Immigration Defense Unit, which represents the detained migrants, called Wednesday's injunction a testament to the continued dire situation in Yuba County Jail.

"By refusing to contest the injunction here, ICE recognized what it must — that it had not acted to protect those in its custody from the unreasonable risk of harm from COVID, and that the measures ordered by the court are the bare minimum required," MacLean said in a statement to Law360.

Countering the agency's claims, the detained migrants told the court that ICE was not meeting its obligations under Judge Chhabria's order in their status report Tuesday. Authorities at the jail were undercounting symptomatic people, failing to notify the migrants' counsel of positive test results in a timely manner, not cleaning appropriately, and counting detainees as recovered based on the passage of time rather than their actual health status, they said.

Hayden Rodarte, justice catalyst fellow at the Lawyers' Committee for Civil Rights, which represents the detained individuals, told Law360 that the timing and enforcement of the injunction were critical due to Yuba County's high positivity rates amid California's rising tide of cases.

"We are monitoring the situation extremely closely and so is the court, it seems, in order to move for any future relief that's necessary to either enforce what we already have won in this most recent order or to request more permanent forms of relief as necessary," Rodarte said.

In the meantime, Rodarte said the legal team was renewing its efforts to secure the release of the 18 immigration detainees remaining in Yuba County Jail through bail applications. The injunction bars ICE from placing any more detainees at the facility until it goes two weeks without a positive case.

Bill Freeman, senior counsel at the ACLU Northern California, called the agency's attitude toward the health and safety order "at best very casual" in an interview with Law360 on Wednesday.

"The government has the ability to require Yuba County to take the necessary precautions and safety measures to protect our clients," Freeman said. "And to the extent that it fails to do so, we'll be back in court."

ICE declined to comment.

The detainees are represented by Martin Schenker, Timothy Cook and Francisco Unger of Cooley LLP, Amalia Wille and Judah Lakin of Lakin & Wille LLP, Angelica Salceda, William Freeman and Sean Riordan of the ACLU of Northern California, Jordan Wells and Stephanie Padilla of the ACLU of Southern California, Bree Bernwanger and Hayden Rodarte of the Lawyers' Committee for Civil Rights of San Francisco, and Emilou MacLean, Genna Beier, Jennifer Friedman, Kelly Wells and Francisco Ugarte of the San Francisco Office of the Public Defender.

U.S. Immigration and Customs Enforcement is represented by Adrienne Zack, Neal Hong, Shining Hsu, Shiwon Choe, Wendy Garbers and Sara Winslow of the U.S. Attorney's Office for the Northern District of California.

GEO Group is represented by Royal Oakes, David Weinstein and Michael Newman of Hinshaw & Culbertson LLP, and Susan Coleman of Burke Williams & Sorensen LLP.

The case is Zepeda Rivas et al. v. Jennings et al., case number 20-cv-02731, in the U.S. District Court for the Northern District of California.

--Editing by Aaron Pelc.

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