ICE Ordered To Answer For COVID-19 Death Listed As Release

By Jennifer Doherty
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Law360 (March 22, 2021, 7:29 PM EDT) -- A California federal judge has ordered U.S. Immigration and Customs Enforcement to explain how a vulnerable detainee at its Adelanto detention center died of COVID-19 shortly after being sent to a hospital, saying the agency appeared to hide his condition by saying the man was "released."

Martin Vargas Arellano died on March 8 from complications of COVID-19, according to a death notice referenced by U.S. District Judge Terry J. Hatter Jr. Arellano was a member of a certified class of detainees who filed a habeas petition last April claiming that ICE was not taking necessary precautions to protect Adelanto's 1,300 detainees from the novel coronavirus.

In an order issued Saturday, Judge Hatter, who has previously castigated ICE over its "callous disregard" for detainees' safety and its "straight up dishonesty" regarding its progress in reducing the number of detainees at Adelanto enough to allow them to keep six feet apart, once again laid into the agency, calling the facts surrounding Arellano's death "disturbing."

"Based on the notice of death, it appears that the government actively concealed the seriousness of Mr. Arellano's condition, and his subsequent death, from his counsel and the court by reporting that Mr. Arellano was released from detention on March 5, 2021," the judge said.

The death notice also appeared to indicate that ICE had failed to notify Arellano's family, lawyers or Judge Hatter as his illness progressed and when he died, the judge said.

ACLU of Southern California senior staff attorney Jessica Bansal, one of the lead attorneys for the Adelanto detainees, confirmed to Law360 that class counsel was informed only that Arellano had been released from detention — not that he had been released to a hospital.

"It is outrageous that ICE kept Martin Vargas [Arellano] detained throughout the pandemic despite his extreme vulnerability to COVID-19, only to 'release' him to the hospital three days before his death," Bansal told Law360 in a statement Monday. "ICE's lack of candor about the true nature of his release gravely exacerbated an already tragic situation."

Judge Hatter ordered Arellano, who had diabetes, hypertension, Hepatitis C and schizophrenia, released to a transitional living center last April, but later stayed that order when that plan fell through, according to Bansal. A stay in the class action later delayed the court from ruling on an updated plan presented by Arellano's attorney.

"[His] attorney then repeatedly asked ICE to exercise its discretion to release Mr. Vargas, and they refused," Bansal said.

To clarify the circumstances of Arellano's death, Judge Hatter directed the government to describe in writing the progression of Arellano's sickness and the medical care he received by noon Tuesday.

The judge further directed the government to explain its actions and those of private prison contractor The GEO Group Inc., which owns and operates the Adelanto ICE Processing Center, relating to Arellano's sickness and death, including "the reporting of his 'release.'"

Judge Hatter also demanded a "detailed explanation as to why the government did not notify Mr. Arellano's family, attorneys, or the court as to the progression of his COVID-19-related illness, the significant deterioration of his health, or his death."

ICE and GEO Group declined to comment on the order.

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 and Jeffrey S. Robins of the U.S. Department of Justice's Civil Division, and Daniel A. Beck and Hillary Morgan Burrelle of the U.S. Attorney's Office for the Central District of California.

The case is Hernandez Roman et al. v. Wolf et al., case number 5:20-cv-00768, in the U.S. District Court for the Central District of California.

--Additional reporting by Dave Simpson and Alyssa Aquino. Editing by Adam LoBelia.

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