ICE Detainees' COVID-19 Bail Suit Ends With Just 7 Held

By Chris Villani
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Law360 (April 7, 2021, 3:21 PM EDT) -- A class of U.S. Immigration and Customs Enforcement detainees at a Massachusetts jail asked a federal judge to approve a settlement Tuesday after the litigation nearly emptied the facility of people being held by ICE during the COVID-19 pandemic.

The detainees filed suit in March 2020, shortly after the pandemic began in the U.S., saying they feared for their lives due to unsafe and crowded conditions inside the Bristol County House of Correction.

U.S. District Judge William G. Young certified a class in the case and admitted dozens of immigrants to bail. The case reduced the number of people in the facility from 148 to seven.

If the proposed settlement is approved, it would ensure the continued release of those already out on bail, secure the release of six additional people, and give the seven left in custody the option to transfer to another ICE facility in New England.

Judge Young scheduled a hearing May 3 to consider the settlement. Oren Sellstrom of Lawyers for Civil Rights, which represents the detainees, told Law360 Wednesday he's optimistic the judge will grant approval.

"This class action has been extraordinarily successful in protecting the health and safety of immigrants held by ICE in Bristol County's civil detention facilities during the pandemic, and has served as a blueprint for numerous similar lawsuits across the country," Sellstrom wrote in an email. "The settlement extends those protections even further and to yet more class members."

The suit is believed to be the first filed during the pandemic on behalf of all ICE detainees at a particular facility, rather than those with underlying health risks that made them more susceptible to serious illness or death if they contracted COVID-19.

Judge Young certified a class and released 43 people on bail. Others were released by ICE voluntarily, on bond from immigration judges or through their own immigration proceedings.

The First Circuit in March declined to undo Judge Young's decision denying bail to several immigration detainees convicted of violent crimes, finding it was reasonable to decide they still belonged behind bars during the health crisis.

Attorneys for the detainees said the fact that class members who were released have successfully remained under ICE supervision shows Judge Young was correct when he wrote in his preliminary injunction order that "it would appear we are spending millions of our national treasure to lock up thousands of people who might better be released … without impairing the safety of our citizens or the operations of our government."

Representatives for ICE and the Bristol House of Correction did not immediately return comment requests Wednesday.

A representative for Bristol County Sheriff Thomas Hodgson, who is an outspoken backer of former President Donald Trump, blasted the claims shortly after they were filed and predicted the suit would be thrown out in less than five minutes once it was before a judge.

"Claiming they have no toilet paper or sanitizer, claiming we admit people without health screenings ... it's laughable how false these lies are," Hodgson spokesperson Jonathan Darling said at the time. "Filing this lawsuit is a waste of the paper and ink it is printed on, and a waste of the time of the people who penned it and those who have to react to it."

On Wednesday, Darling told Law360 that no inmate had tested positive for COVID-19 at the time the suit was filed and, since the pandemic began, "the Bristol County correctional facilities had complied meticulously with every directive and/or recommendation set out by the CDC or the Massachusetts Department of Public Health regarding disinfection and COVID prevention."

"The settlement agreement specifically reiterates what was the Bristol County Sheriff's Office's contention from the outset: that the BCSO did nothing wrong whatsoever," Darling said. "The Department of Homeland Security only resolved this case to avoid protracted further litigation."

Last 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. Darling said Wednesday that the settlement will include a request that the injunction come to an end, allowing the facility to be "fully re-populated with ICE detainees."

The judge also took issue with what he called 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.

Singling out detainees who were especially unfit to be released on bail did not mean 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."

The detainees are represented by Oren Sellstrom, Lauren Sampson and Ivan Espinoza-Madrigal of Lawyers for Civil Rights, Oren Nimni of Rights Behind Bars, Emily Jo Coady, Grace Choi, Kayla Crowell, Juan Fernando Luna Léon, Siyuan Sonia Qin, Fernando Quiroz, Isir Said, Michael Wishnie, Sara Zampierin and Jerome N. Frank of the Worker and Immigrant Rights Advocacy Clinic at Yale Law School, and Lisa Pirozzolo, John Butts, Felicia Ellsworth, Nicole M.F. Dooley, Annaleigh Curtis, Michael Brown, Andy O'Laughlin, Rama Attreya, Gary Howell-Walton, Mikayla C. Foster, Elizabeth E. Driscoll and Asma Jaber of Wilmer Cutler Pickering Hale and Dorr LLP.

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 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.

--Additional reporting by Brian Dowling & Hailey Konnath. Editing by Philip Shea.

Update: This story has been updated with comments from the Bristol County Sheriff's Office.

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