By Sarah Martinson

Law360 (April 13, 2020, 8:30 PM EDT) -- U.S. Immigration and Customs Enforcement must provide detainees with free, private phone service so they can contact their attorneys, which is of crucial importance during the coronavirus pandemic, when the detainees' lives are at risk, a California federal judge has ruled.

U.S. District Judge Jesus G. Bernal said detainees at the GEO Group Inc.-operated Adelanto ICE Processing Center have shown that they will be irreparably harmed if they are unable to communicate with their counsel about filing petitions to be released from ICE custody amid the novel coronavirus outbreak, warranting a temporary restraining order.

Not being able to petition for release could jeopardize the health of detainees who are vulnerable to medical complications from the coronavirus, Judge Bernal said.

"The court takes as a given that defendants are operating in exceedingly difficult circumstances and are doing their utmost to prioritize the health of detainees and staff," he said. "However, greater equities accrue to plaintiffs, for whom health, as well as the ability to remain in the country, avoid persecution, torture, or death, and perhaps remain with their U.S. resident family members, may be at stake."

Before the coronavirus hit the U.S., the detainees filed a lawsuit in December 2018 alleging that ICE was preventing them from conferring with their counsel about upcoming immigration proceedings, according to the complaint. The detainees said they had to wait in lines to use phones and leave messages for their attorneys during nonbusiness hours, with no reliable way for their counsel to return their calls.

As a result, the detainees' counsel had to visit their clients at the Adelanto detention center in person, but the attorneys had no way to schedule their visits in advance and weren't provided with private areas to discuss sensitive case information with their clients, according to the judge's order.

Then on March 24, in response to the coronavirus outbreak, ICE implemented a new policy requiring attorneys to wear masks, gloves and goggles to visit their clients, disregarding the fact that those supplies are in short supply, according to the order.

Judge Bernal said ICE's argument that the agency shouldn't be held liable for shortages of personal protective equipment is irrelevant.

"The only reason the shortage of PPE matters is defendants' policies or practices, which do not provide for reliable, free confidential legal calls and therefore dictated plaintiffs' pre-pandemic reliance on in-person visits," he said.

The detainees' attorney Chris Assise of Sidley Austin LLP told Law360 that they hope ICE promptly implements the judge's order.

"Our view is that none of these things should be particularly burdensome, and in fact, during oral argument and in some of the briefing, the government represented that some of these things were in place in various ways," Assise said. "We certainly tried to tailor our relief in a way that was nonburdensome and could be implemented as quickly as possible while affecting what needed to be affected."

ICE doesn't comment on pending litigation, but an ICE spokesperson said Tuesday that the agency is committed to ensuring that facilities follow ICE's detention standards and that "all facilities provide detainees with reasonable and equitable access to telephones."

Detainees can make free, unrecorded calls to legal service providers on an approved list "for the purpose of obtaining initial legal representation," but call forwarding and three-way calling are not permitted, the spokesperson added. 

A spokesperson for the GEO said that the telephone services at the detention center are provided by third parties contracted by the federal government. 

The detainees are represented by Michael Kaufman, Eva L. Bitran and Zoe McKinney of the American Civil Liberties Union, Jayashri Srikantiah and Lisa Weissman-Ward of the Stanford Law School Immigrants' Rights Clinic, Sean A. Commons, Christopher M. Griffin, and Nicholas S. Willingham, T. Robert Scarborough and Christopher M. Assise of Sidley Austin LLP.

GEO Group is represented by Michael Gallion and David Van Pelt of Akerman LLP.

ICE is represented by Joseph Darrow of the U.S. attorney's office.

The case is Ernesto Torres et al. v. U.S. Department of Homeland Security et al., case number 5:18-cv-02604, in the U.S. District Court for the Central District of California.

--Additional reporting by Suzanne Monyak. Editing by Stephen Berg.

Update: This article has been updated to clarify GEO's comment and with a statement from ICE. 

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