Ongoing Immigration Detention Litigation Amid COVID-19

Kim Langona, Apr. 3, 2020

"On March 11, 2020, the World Health Organization officially declared COVID-19 a global pandemic. Two days later, President Trump declared a national emergency over the COVID-19 outbreak. To date, the Centers for Disease Control and Prevention (CDC) has reported 7,600 deaths and more than 300,000 cases in the United States alone.

Immigration officials are already empowered to let people shelter in private residences as public health officials advise. According to section 212(d)(5)(A) of the Immigration and Nationality Act, the Department of Homeland Security has the power to parole “any alien applying for admission” for urgent humanitarian reasons or significant public benefit. Indeed, immigrant advocacy groups around the country are demanding that Immigration and Customs Enforcement (ICE) release at-risk individuals who the agency continues to detain amidst the COVID-19 pandemic.

Where ICE has refused to use its discretion to release migrants, advocates have filed suit in federal court, warning “that an outbreak in any detention center could spread like wildfire.” The American Civil Liberties Union (ACLU) and its partner organizations alone have filed suits across the country—including California, Massachusetts, Maryland, New Jersey, Pennsylvania, and Washington, promising to file more as needed. These suits argue that individuals in detention are highly vulnerable to outbreaks of contagious illnesses because they are housed in close quarters with limited healthcare resources. Furthermore, advocates argue that ICE’s preventative measures are insufficient to combat the pandemic and, more generally, access to basic healthcare in ICE facilities is compromised by systemic medical neglect and lack of oversight.

The litigation has been met with mixed success. However, as COVID-19 continues its devastating path around the country, there is growing recognition among courts that releasing vulnerable individuals from ICE detention is necessary.   

California

On March 23, 2020, the Ninth Circuit ordered the release of a woman who was pursuing an asylum claim. Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020). In a brief one-page order, the court did not expand much. It did, however, make clear its concern for the migrant’s well-being. “[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court,” the court wrote.

On March 27, 2020, a federal judge in the Central District of California ordered the release of two individuals who were detained in the Adelanto ICE facility in San Bernardino, California. Castillo v. Barr, No. 5:20-cv-20-00605-TJH-AFM (C.D. Cal. 2020). Notably, neither of these two individuals has one of the CDC-listed medical vulnerabilities. However, the lawsuit argued that, because they were picked up during an ICE raid on March 16 and 17 and taken into ICE custody, their release was warranted because “the conditions at Adelanto expose[d] them to a substantial risk of suffering serious harm – increased exposure to or contracting COVID-19.” Id. at 6. The court agreed, ordering them released and strongly suggesting that civil detention in the current pandemic is beyond constitutional norms. Id. ICE cannot “ignore a condition of confinement that is more than likely to cause a serious illness,” the court explained. Id. at 9.

On April 2, 2020, a federal judge in the Central District of California ordered six at-risk migrants released from the Adelanto detention center in San Bernardino, California. Robles Rodriguez v. Wolf, No.5:20-CV-00627-TJH-GJS (C.D. Cal. April 2, 2020). In its lawsuit, the ACLU of Southern California argued that the migrants were “at particular risk of irreparable harm because they each have conditions such as diabetes, HIV, and asthma, which put them at serious risk of grave medical complications or even death if they contract COVID-19.”

In a separate series of lawsuits, advocates are arguing that the response to COVID-19 from the Department of Health and Human Service’s Office of Refugee Resettlement (ORR) and ICE violates a 1997 consent decree—the Flores Settlement Agreement (FSA)—which governs the care of migrant minors in U.S. immigration custody. Flores v. Barr, No. 2:85-cv-04544-DMG (AGRx) (C.D. Cal. Mar. 28, 2020); Lucas R. v. Azar. No. 2:18-cv-05741-DMG (PLAx) (C.D. Cal. Apr. 2, 2020). The lawsuits seek (1) the release of migrant children who are neither a flight risk nor a danger to the community; (2) enforcement of the FSA’s provision that requires the government to make and record their continuous efforts towards releasing migrant children; (3) placement of minors into non-congregate settings; and (4) implementation of CDC public health strategies to protect individuals in congregate detention settings. Flores, No. 2:85-cv-04544-DMG (AGRx) at 4 (C.D. Cal. Mar. 28, 2020).

After considering briefing and arguments, on March 28, 2020, the Central District of California declined to order the government “release minors en masse,” citing travel restrictions, possible contagion via public transportation, and “introducing healthy children to homes where they could be at a higher risk of infection.” Id. at 12. Nonetheless, the court reminded ORR and ICE of the agencies’ obligation under the FSA to release minors “without unnecessary delay.” Id. at 13. The court further ordered the agencies “to show cause why they should not be held to answer for unexplained delays in released eligible Class Members.” Id. at 13. The court made clear its concern for migrant children, noting that they “are already more likely to have mental health concerns [and] may be separated from their family members,” thus “the trauma of undergoing solitary quarantine for the virus or simply not receiving adequate information about the potential for infection is likely to exacerbate existing mental health concerns.” Id. at 6.

Louisiana

On April 1, 2020, advocates filed suit in the Eastern District of Louisiana for the release of “seventeen individuals detained in the custody of the New Orleans ICE Field Office in detention centers in Louisiana, Mississippi, and Alabama” who are at-risk based on age and pre-existing medical conditions. Plaintiffs’ Memorandum of Law in Support of Their Motion for a Temporary Restraining Order, Dada. v. Witte, No. 2:20-cv-01093-GGG-KWR at 2 (E.D. La. filed Apr. 1, 2020). The plaintiffs have conditions “such as diabetes, lung disease, kidney disease, or other illness.” Id. at 4. The suit argues that civil detention with “cramped, unsanitary, and irremediable conditions” amid COVID-19 violates the migrants’ due process rights to protection from harm and to be free from punitive conditions. Id. at 13-15.  If the Court determines that oral argument or a status conference is necessary, it will conduct a telephonic proceeding at 10:00 a.m. on Monday, April 6, 2020. Dada v. Witte, No. 2:20-cv-01093-GGG-KWR at 2 (E.D. La. Apr. 2, 2020). At the time of this post, the court has not yet issued its final order.

Maryland

On April 3, 2020, a federal judge in the District of Maryland declined to order two men released from the Worcester County Detention Center and Howard County Detention Center. Coreas v. Bounds, No. 8:20-cv-00780-TDC (D. Md. Apr. 3, 2020). The two migrants are considered high-risk based on their underlying health conditions of Type 2 diabetes, hypertension, and prostate problems. Id. at 6, 8. The court was unwilling to find that detaining high-risk migrants during the COVID-19 pandemic is per say unconstitutional. Id. at 29. The court reasoned that this case is different than others where federal judges have ordered release, because the facilities in question presented “no confirmed cases of COVID-19” and are “substantially below capacity” in contrast to other “facilities [that] had significant overcrowding and unsanitary conditions . . . .” Id. at 28-29. However, the court denied the motion without prejudice, noting that it would reconsider the issue if COVID-19 is reported within the detention centers or if the government fails to file a “Testing Certification by Wednesday, April 8, 2020” that the facilities have COVID-19 tests and plan to test people with suspected symptoms of the virus. Id. at 33.

New York

On March 26, 2020, the Southern District of New York ordered the release of ten individuals who were at increased risk of contracting COVID-19 due to underlying health conditions. Basank v. Decker et. al., 2020 WL 1481503 (S.D.N.Y. March 26, 2020). The court emphasized that these individuals were housed in New Jersey county jails “where either detainees or staff have tested positive for COVID-19,” id. at 2, and that “New York and its surrounding areas have become one of the global epicenters of the outbreak.” Id. at *1. The court cited the Supreme Court’s decision in Helling v. McKinney, 509 U.S. 25, 33 (1993), for the authority that “government authorities may be deemed ‘deliberately indifferent to an inmate’s current health problems’ where authorities ‘ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,’ including ‘exposure of inmates to a serious, communicable disease,’ even when ‘the complaining inmate shows no serious current symptoms.’” Id. at *5.  The court went on to say that the government’s preventative measures were “patently insufficient” to protect the petitioners. Id.

On April 2, 2020, the Western District of New York decided that detaining twenty-two at-risk migrants under the current conditions at an ICE facility in Batavia, New York violated their substantive Due Process rights. Jones v. Wolf et. al., No. 1:20-cv-00361-LJV (Apr. 2, 2020). Nonetheless, the court declined to order the migrants’ immediate release and gave the government until 5:00 p.m. on April 3 to “submit a detailed plan . . . demonstrating how they will provide those petitioners who are vulnerable individuals as defined by the [CDC], with a living situation that facilitates ‘social distancing.’” Id. at 2. Then, the government has until 9:00 a.m. April 6 to report which steps of the plan it has taken. The court reasoned that, because the detention center was at “roughly half of its capacity to house detainees” it is likely that the government could “rectify the ongoing [constitutional] violation by providing those petitioners who meet the CDC’s definition of vulnerable individuals with a living situation that facilitates ‘social distancing.’” Id. at 31. After those court-imposed deadlines, the court will decide whether the government has remedied the constitutional violation and if injunctive relief is still necessary. Id. at 32.

On March 27, 2020, the Southern District of New York granted the immediate release of four individuals in civil detention who are at-risk based on age or underlying medical conditions. Coronel v. Decker, No. 2-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020). The suit sought the migrants’ immediate release on the grounds that their continued incarceration constituted deliberate indifference to the risk of serious medical harm in violation of their Fifth Amendment Due Process rights. Id. at *1. Notably, the court agreed that the record showed the government’s deliberate indifference to the migrants’ medical needs, because the government was “aware of the petitioners’ medical conditions and the serious harm that COVID-19 posed to them” and yet it could “point to no specific action that it took in direct response to this serious, unmet medical need.” Id. at *5. The court also held that the Petitioners demonstrated a likelihood of success on the merits for their procedural due process claim, based on their request for a constitutionally adequate bond hearing. Id. at *6. Nonetheless, the court held that because a “delay increases the probability that they will contract COVID-19 in the interim,” id. at *9, the migrants “must be released until they receive their bond hearings.” Id.

Pennsylvania

On March 31, 2020, a federal judge for the Middle District of Pennsylvania ordered the release of 11 individuals, plus two others who had already been released, who were detained by ICE at state correctional facilities in Pennsylvania. Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020). The individuals were “members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual,” with conditions ranging from diabetes to leukemia to high blood pressure. Id. at 16. Notably, the court rejected the government’s argument that they would not be in danger until pandemic struck the facility, stating that “a remedy for unsafe conditions need not await a tragic event.” Id. at 6 (citations omitted). The court warned, “[a]t this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Id. at 8. In its opinion, the court also nodded to two doctors contracted by the Department of Homeland Security’s Office for Civil Rights and Civil Liberties who had previously warned Congress of the increasingly precarious situation. Id. at 12-13. Quoting what the doctors describe as the “tinderbox scenario,” the court wrote:

[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).

Id. at 13.

Washington

On March 19, 2020, a federal judge in the Western District of Washington denied the immediate release of nine individuals detained at the Tacoma Northwest Detention Center (NWDC) near Seattle. Dawson v. Asher, No. 2:20-cv-0409-JLR-MAT (W.D. Wash. Mar. 19, 2020). The court reasoned that the lawsuit presented “no evidence that anyone at NWDC has COVID-19,” citing the government’s briefing on preventative measures taken including “suspending social visitation, assessing detainees for fever and respiratory illness, isolating detainees with COVID-19-compatible symptoms, and instructing detainees on hand washing and hygiene.” Id. at 5. However, in a footnote, the court indicated that it would continue to consider the case, particularly as COVID-19 evolves past the narrow set of facts presented to the court. Id. at 6, n.4.

Washington, DC

A group of parents and minor children held by ICE in its three “family residential centers” has asked a federal court in Washington, DC to release everyone held in the agency’s in those facilities. O.M.G. v. Wolf, No. 1:20-cv-00786 (D.D.C. March 21, 2020). The three ICE facilities—one in Pennsylvania and two in Texas—currently hold approximately 3,000 people. In an amicus brief supporting the migrants’ request for release, the American Academy of Pediatrics argued, “by the time the first cases are diagnosed, the FRCs will almost certainly already have become ‘hotspots’ . . . A significant number [of children and parents] will then require hospitalization, facing the chance of permanent disability or death . . . . The only viable public health intervention . . . is to release these families.” The court has not yet issued any orders.

Meanwhile, individuals in ICE custody have also taken their own measures to protest prison conditions amidst COVID-19, including organized hunger strikes and creating a video through visitation technology to communicate their fears of a contagion in the crowded facility."

Kim Langona is a third-year law student at the University of Denver Sturm College of Law. She aspires to work in immigration law to advance migrants’ rights in her home state of Colorado.