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Habeas Petition Filed in Colorado: Codner v. Choate

April 14, 2020 (6 min read)

RMIAN, Arnold & Porter, NIPNLG, Apr. 14, 2020

"Medically-Vulnerable Immigrants Detained by ICE in Aurora, Colorado Seek Immediate Release Amidst Coronavirus Pandemic

Detained Individuals File Urgent Petition for Release from Detention Center where Several Staff Have Tested Positive for COVID-19

Today, Arnold & Porter, the National Immigration Project of the National Lawyers Guild (NIPNLG), and the Rocky Mountain Immigrant Advocacy Network (RMIAN) sued for the release of 14 medically-vulnerable people currently held in civil immigration detention at the Aurora ICE Processing Center in Colorado, citing the severe risk the COVID-19 pandemic poses to their health and safety. Several of the petitioners are transgender women living with HIV, and all the petitioners have serious medical vulnerabilities that make them especially susceptible to serious illness or death should they contract COVID-19. The ICE detention facility in Aurora, Colorado has failed to put in place CDC-recommended preventive measures, and is unable to provide adequate medical care in the event of an outbreak at the facility. 

The complaint and accompanying emergency motion for release filed today caution that the inevitability of a coronavirus outbreak in this facility renders the continued detention of these individuals a potential death sentence for immigrants detained at the facility.

View the complaint and the motion for temporary restraining order here

“When people around the world are social distancing, RMIAN’s clients in immigration detention describe conditions where they can reach out and touch the person laying in the bed next to them. The individuals in this case have underlying medical conditions that mean that exposure and infection to COVID-19 may be a death sentence for them,” said Laura Lunn, Managing Attorney of the Detention Program at the Rocky Mountain Immigrant Advocacy Network. “They have no way of creating a shield between themselves and the hundreds of other people at the Aurora facility.” 

According to an expert declaration filed by Dr. Carlos Franco-Paredes, a University of Colorado infectious disease expert, it is impossible for the detention facilities to comply with CDC guidelines around social distancing, quarantine, and treatment. He predicts the facility’s rudimentary medical units will quickly become overwhelmed. Dr. Franco-Paredes states that the attack rate of new infections inside Aurora detention center may reach exponential proportions if left unchecked. The plaintiffs themselves report that the detention facilities have not provided those detained with any information about coronavirus beyond basics of handwashing, including guidelines for preventing it or virus symptoms; that many are housed in open dorms with beds only a few feet apart; and that staff cycle through the dormitories regularly without wearing masks or gloves. 

Detained people do not have personal protective equipment or cleaning supplies other than a generic bath bar and spray solution. In recent days, five staff members who work in the facility have tested positive for the virus, and several dorm units in the facility were placed under quarantine. Given the presence of the virus among the facility staff, attorneys say it is reasonable to suspect that detained individuals have already been exposed and that serious illness or death for many immigrants and asylum seekers confined there is inevitable. 

“ICE’s needless detention of people in the immigration system has always been excessive, but in the current circumstances, it is also recklessly endangering lives,” said Sirine Shebaya, Executive Director of the National Immigration Project of the National Lawyers Guild. “ICE is fully aware of the risks involved in detaining people — especially those who are medically vulnerable or who are housed in facilities that have long histories of poor conditions. Their continued detention shines a clear light on the bloated system of mass incarceration that our immigration authorities are continuing to hold onto, even in the face of a public health emergency. It shouldn’t take an emergency lawsuit to obtain their release.”

The 14 detained plaintiffs include 11 transgender women, most of whom are living with HIV and have weakened immune systems. The women report paralyzing fears of falling ill with COVID-19. As a result, they are taking every precaution within their control and refraining from going to the recreation area or the law library. 

“Transgender individuals face extraordinary vulnerability, abuse, and neglect in ICE detention even when we are not facing a global pandemic,” says Allegra Love of the Santa Fe Dreamers Project, an organization that represents many of the transgender women. “Over the last four weeks we have given ICE every opportunity to make the respectful, dignified and life-saving decision to release our clients. Since they have failed, it is time to ask the court to intervene.” 

The clients included in this group all experience serious health issues, including respiratory illness, diabetes, high blood pressure, heart conditions, cancer, asthma, and otherwise severely compromised immune systems. One petitioner has a history of cancer, is living with only one lung, and has chronic asthma, yet she is unable to control her contact with the outside world given that she is currently detained. Attorneys say coronavirus quarantines have exacerbated the already dire conditions in the ICE facility.

Timothy Macdonald, pro bono counsel for the petitioners at Arnold & Porter, said: “In these unprecedented times, it is critically important to protect those who are the most vulnerable in our community.  Our clients faced unthinkable circumstances at home and came to this country seeking asylum. We cannot consign them to a COVID-death sentence because of the inadequate conditions in immigration detention facilities.” 

“We believe strongly in the dignity of every human being and will work tirelessly to secure their release,” Adrienne Boyd, pro bono counsel for the petitioners at Arnold & Porter added. The complaint filed today argues that it is simply not possible for the detention center to implement COVID-19 protocols such as social distancing (maintaining a distance of at least six feet between oneself and others), preventive hygiene, and the medical isolation of confirmed or suspected COVID-19 cases and that this creates a risk of death and other harm that violates constitutional protections ensuring adequate care and preventing deliberate indifference to obvious medical risks. 

Still, the people being detained are resolute in advocating for themselves and the others who live and work in the facility. 

“If the virus befalls one person here, it will befall everyone here,” the lead plaintiff, Jennifer Codner, a Jamaican native and transgender woman who has high blood pressure and other health conditions, said in her declaration. “The virus does not discriminate and no one will be safe. Because we are at the mercy of this place, there is no way to ensure our own health.” In light of this pandemic, she is reminded of the words of Nelson Mandela, who said that no one truly knows a nation until one has been inside its jails.

Co-counsel in the case are Timothy Macdonald, Adrienne Boyd, Katie Custer, and Sarah Grey of Arnold & Porter, Sirine Shebaya, Khaled Alrabe, and Amber Qureshi of the National Immigration Project of the National Lawyers Guild, and Laura Lunn of the Rocky Mountain Immigrant Advocacy Network. 


With nearly 1,000 lawyers practicing in 14 offices around the globe, Arnold & Porter serves clients across 40 distinct practice areas. The firm offers 100 years of renowned regulatory expertise, sophisticated litigation and transactional practices, and leading multidisciplinary offerings in the life sciences and financial services industries. 

The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.

The Rocky Mountain Immigrant Advocacy Network (RMIAN) is a nonprofit organization that provides critical immigration legal services to individuals in immigration detention, as well as to children and families throughout Colorado. Follow RMIAN on social media: The Rocky Mountain Immigrant Advocacy Network on Facebook, @RMIAN_org on Twitter. 

The case is Codner v. Choate and was filed in federal district court in Denver."