By Hailey Konnath

Law360 (March 17, 2021, 10:50 PM EDT) -- The First Circuit on Wednesday refused to disturb a Massachusetts federal court's decision denying bail to several immigration detainees convicted of violent crimes, finding that it was reasonable to decide the detainees still belonged behind bars in the midst of the COVID-19 pandemic.

The detainees are immigrants being held in the Bristol County House of Correction in Massachusetts and class members in a certified class action against ICE and state corrections officials. The detainees sued over crowded and unsafe conditions during the pandemic, telling the court that they were "literally trapped" and feared for their lives. Last year, a Massachusetts federal judge granted bail to dozens of detainees but denied bail to a small number without elaborating on his decision.

In November, the class asked the court to reconsider, and it refused. The dispute then landed in the First Circuit, where the five detainees still fighting their denials have argued that the court had erred in its decisions. They lodged a petition for writ of mandamus Nov. 25, arguing that the court had applied the wrong standard in denying their release. Given that the pandemic is an exceptional circumstance, they should be permitted to leave the facility, they said. 

But the First Circuit agreed with U.S. District Judge William G. Young on Wednesday, noting that although the judge didn't explicitly state reasons for denying their bail, all of them have been convicted of violent crimes. The three-judge panel rejected their petition, noting that remedying overcrowding at the jail doesn't necessarily require the release of every single detainee.

The district court properly made individualized determinations focusing first on those who were being held ahead of trial and accused of nonviolent crimes, the First Circuit said.

"Each of the petitioners here, as the district court knew, had committed serious, violent crimes, many of which were felonies," the panel said in an opinion written by Circuit Judge Sandra J. Lynch. "Based on their criminal histories, it was reasonable to deny bail to these petitioners because they each posed dangers to the community and/or were flight risks."

And even though Judge Young denied bail to the petitioners in this appeal, he still succeeded in decreasing the population of detainees at the jail by a significant amount, "reducing the risk of any potential harm to the detainees remaining," the First Circuit said.

The panel also rejected the detainees' request that it find the pandemic an "exceptional circumstance" warranting bail for all detainees regardless of individual circumstances.

Issuing a writ of advisory mandamus to determine whether the pandemic is exceptional is inappropriate, the First Circuit said, because the question is a factual one, not a legal one.

"Many contextual factors — including, for example, rapidly evolving scientific knowledge about COVID-19 and how it spreads, the population density at BCHOC and the availability of treatments and vaccines for the virus — affect whether COVID-19 constitutes an exceptional circumstance warranting bail for BCHOC detainees at any given point in time."

Inmates in the southeastern Massachusetts jail sued in late March 2020, citing the facility's allegedly failing response to the virus and unsanitary conditions. Judge Young certified the detainees as a class and released dozens on bail.

In May, Judge Young ordered ICE to pay for the facility to test all of the federal immigration detainees in its care, as well as all jail employees, and ordered the facility to stop taking in new detainees. That ruling stemmed from his finding of "deliberate indifference" on the part of the government.

Last summer, Judge Young tore into the government's "off the wall" argument in opposition to bailing out the detainees, saying in an order that ICE and the Bristol County facility were being "fanciful" while arguing that they had worked with, rather than against, the class of detainees.

"There was no 'tacit approval' or 'collective process' of releases," Judge Young wrote, acknowledging that the government did help in singling out detainees who were especially unfit to be released on bail.

"Yet that does not imply that the government agreed that others should be released, let alone worked toward that goal. It did not," the judge wrote. "At the end of the day the government's position was uncompromising. It was also off the wall."

ICE representatives and counsel for the detainees didn't immediately return requests for comment late Wednesday.

U.S. Circuit Judges Sandra J. Lynch, Bruce Selya and William J. Kayatta sat on the panel for the First Circuit.

The detainees are represented by Sameer Ahmed of the Harvard Immigration & Refugee Clinical Program

The government is represented by William C. Peachey, Jeffrey S. Robins, William C. Silvis, Christina Parascandola and Michelle M. Ramus of the DOJ's Office of Immigration Litigation and Thomas Kanwit and Michael Fitzgerald of U.S. Attorney's Office for the District of Massachusetts.

The district court case is Maria Alejandra Celimen Savino et al. v. Steven J. Souza et al., case number 1:20-cv-10617, in the U.S. District Court for the District of Massachusetts. The appellate case is In re: Da Graca et al., case number 20-2117, in the U.S. Court of Appeals for the First Circuit.

--Additional reporting by Chris Villani and Brian Dowling. Editing by Emily Kokoll.

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