Judge Says ICE Officials Lied To Court, Obstructed Case

By Asher Stockler
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Law360 (December 4, 2020, 5:59 PM EST) -- Blasting the conditions inside an immigration facility in Bakersfield, California, as well as its operators, a federal judge on Thursday accused U.S. Immigration and Customs Enforcement officials of giving "false testimony" to the court "several times" and obstructing its proceedings.

U.S. District Judge Vince Chhabria tore into how ICE officials comported themselves during the months-long litigation over COVID-19 precautions at Mesa Verde detention center, operated privately by GEO Group on behalf of the government.

"From the start of the public health crisis until now, the conduct of the key ICE and GEO officials in charge of operations at Mesa Verde has been appalling," he wrote in an order expanding the court's oversight of the center. "It should thus come as no surprise that the Mesa Verde facility experienced a severe and prolonged outbreak during the summer — an outbreak that ICE and GEO made no meaningful effort to prevent and were totally unprepared to respond to."

GEO Group did not return a request for comment Friday. An ICE spokesperson declined to comment.

Judge Chhabria further homed in ICE's oversight of Mesa Verde. He said the agency needed a comprehensive plan to anticipate, cope with and respond to a potential coronavirus outbreak inside the facility, but "nine months later they still have not created one."

When an outbreak did occur at Mesa Verde in late July, Judge Chhabria said, officials were "quite literally, relying on hopes and prayers" to contain the disease.

In fact, he accused officials of avoiding implementing widespread testing at the facility "for fear that the results would require them to take expensive and logistically challenging safety measures."

"It's the most forceful order I've seen in my 35 years of practice, and well deserved," Marty Schenker, a lawyer for the detainees suing over ICE's pandemic response, told Law360 in a statement.

The order resolved a few outstanding questions about how to proceed with the facility's operations now that some conditions at Mesa Verde had improved. Administrators will continue to isolate detainees who test positive, perform intake screening on all incoming detainees to include point-of-care testing, put a cap on group dormitories, and test staff and detainees weekly.

The center, with 45 detainees now, is at 11% capacity and has no active cases. But the judge cautioned that over the final two weeks in November a "rapid surge" in cases among facility staff yielded 15 staff members with positive COVID-19 results.

Though the government had argued that further action by the court was not warranted given additional compliance and improved circumstances, Judge Chhabria rejected that assertion, claiming that officials "cannot be trusted on their own" to protect detainees at Mesa Verde.

He called their actions "clear evidence of deliberate indifference" that could be factored into his decision to continue to oversee the facility's operations.

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, and Wendy Garbers 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 Brian Baresch.

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

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