Judge Calls Stay On ICE Petitions A 'Luxury' Amid Virus

By Brian Dowling
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Law360 (April 16, 2020, 2:49 PM EDT) -- A Massachusetts federal judge hearing bail petitions for U.S. Immigration and Customs Enforcement detainees told prosecutors he wouldn't stop short of hearing all their cases just because the government says adequate social distancing is possible at the Bristol County jail holding them, calling the stay request a "luxury."

U.S. District Judge William G. Young on Wednesday denied U.S. Attorney Andrew E. Lelling's request for a blanket stay to halt the releases or at least give his office time to appeal to the First Circuit.

"We are in the midst of a pandemic unprecedented in our lifetime," Judge Young wrote. "Compelling issues of individual, institutional and community health preclude the luxury of a stay so counsel can 'consider their appellate options.'"

In their request for a stay due to a reduced inmate population at the Bristol County House of Correction in Dartmouth, Massachusetts, prosecutors filed hand-drawn floor plans, complete with stick figures and sketches showing how inmates sleeping in bunk beds could be 6-feet-by-7-inches apart if they lay their heads on opposite sides.

Judge Young said he would continue hearing 10 release requests per day until he has heard from all 148 detainees in the case, which he expects to do by the end of next week. At that point, he pledged to "schedule proceedings promptly to address the merits."

Inmates in the southeastern Massachusetts jail, represented by the Lawyers for Civil Rights, filed suit March 27, claiming they were "literally trapped" in the crowded, unsanitary facility during the COVID-19 outbreak and feared for their lives.

Bristol County Sheriff Tom Hodgson, through a spokesman, predicted from the outset that the case would be thrown out in less than five minutes once it got before a judge.

But as of Thursday morning, 44 detainees had been ordered released by Judge Young, and the jail has released or transferred others on separate matters, according to the inmates' counsel Oren Nimni, of the Lawyers for Civil Rights Boston.

Nimni told Law360 that he was encouraged by Judge Young's decision to keep hearing the cases on an individualized basis.

"The government's assertions that BCHOC is now safe have no foundation in medical or public health evidence, and in fact cut against the consensus scientific position," Nimni said.

Immigration detainees facing deportation could also languish in their current situation since many countries have closed their borders during the pandemic, lawyers for the inmates argued in a filing Thursday.

"ICE as a practical matter is unable to deport many individuals who are subject to a final order of removal, leaving them at a heightened risk of exposure to COVID-19 due to the prolongation of their detention with no clear end in sight," lawyers for the inmates said.

Judge Young last week certified the inmates as a class, saying the group has shown the county jail lacks adequate protections against the novel coronavirus. While there haven't been any documented cases of the virus in the jail yet, the detainees there "inevitable will" catch it if nothing is done, the judge said.

Representatives for U.S. attorney's office in Boston declined to comment.

The detainees are represented by Ivan Espinoza-Madrigal, Oren N. Nimni and Oren M. Sellstrom of Lawyers for Civil Rights, and Reena Parikh and Michael J. Wishnie of Yale Law School.

The government is represented by Thomas E. Kanwit and Michael P. Sady of the U.S. Attorney's Office for the District of Massachusetts.

The case is Savino et al. v. Hodgson et al., case number 1:20-cv-10617, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Sara Martinson and Chris Villani. Editing by Gemma Horowitz.

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

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Case Information

Case Title

Savino et al v. Hodgson et al


Case Number

1:20-cv-10617

Court

Massachusetts

Nature of Suit

Habeas Corpus - Alien Detainee

Judge

William G. Young

Date Filed

March 27, 2020

Government Agencies

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