Immigrant Groups Sue for Detainees’ Release 

Arnold & Porter and immigrant groups sued for release of 14 detainees suffering severe medical conditions

More than 60,000 current and former detainees of the Aurora ICE Processing Center won class certification at the 10th Circuit Court of Appeals earlier this month. / LAW WEEK FILE

Several immigrant advocacy organizations announced Tuesday they are suing for the release of several detainees being held at the Aurora U.S. Immigration and Customs Enforcement Processing Center, citing the risk of the COVID-19 pandemic as severe to the detainees’ safety and health.

The Rocky Mountain Immigrant Advocacy Network, the National Immigration Project of the National Lawyers Guild and Arnold & Porter said in a joint press release that several petitioners are transgender women with HIV. All of the individuals have “serious medical vulnerabilities,” which make them susceptible to serious illness or death in the COVID-19 pandemic.

“We filed a habeas petition and emergency motion for release on behalf of our 14 clients, and it’s really because of the inevitability of a coronavirus outbreak in the Aurora detention facility,” Adrienne Boyd, pro bono counsel with Arnold & Porter, said. “Our clients face a serious and heightened risk of illness or death from the virus because of their preexisting medical conditions.”  

Eight of the 14 plaintiffs in the case were released by ICE officials on Wednesday. Those eight individuals are all living with HIV, according to an April 15 release from RMIAN, Arnold & Porter and the National Immigration Project of the National Lawyers Guild.

Timothy Macdonald, pro bono counsel at Arnold & Porter, urged that this result was great for many clients, but the work is not done yet. The co-counsel in the case will continue to fight for release of the other six petitioners who are still detained.

 “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,” an April 14 release states.

The complaint argues it is impossible for the detention center to enact COVID-19 protocols such as social distancing, preventive hygiene and the medical isolation of confirmed or suspected COVID-19 cases, Boyd added. As a result, risks of harm and possibly death are created, which violates constitutional protections ensuring adequate care and preventing deliberate indifference to obvious medical risks.

The April 14 release describes the situation facing detainees as a “potential death sentence.”

“If the virus befalls one person here, it will befall everyone here,” lead plaintiff Jennifer Codner, a Jamaican native and transgender woman, 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.”

It is impossible for detention facilities to comply with guidelines on social distancing, quarantine and treatment, according to Dr. Carlos Franco-Paredes, an infectious disease expert at the University of Colorado. Further, the facility’s medical units will quickly become overwhelmed, he said. The attack rate of new infections inside the Aurora detention center may reach exponential proportions if left unchecked, he said in the release.

“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 lying in the bed next to them,” Laura Lunn, managing attorney of the detention program at the RMIAN, said. “They have no way of creating a shield between themselves and the hundreds of other people at the Aurora facility.” 

The plaintiffs said the detention facilities have not provided information to the detainees on coronavirus beyond the basics of handwashing. Further, some detainees are housed in open dorm situations, and facility staff regularly cycle through the dorms without wearing masks or gloves, according to the release.

The detainees do not have personal protective equipment or cleaning supplies beyond a “generic bath bar and spray solution,” according to the joint release. Due to the presence of the virus among the 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.”

Previously, ICE reported that two detention facility employees tested positive for the coronavirus.

“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,” according to the release. 

As of Friday morning, ICE reported zero detainees suffered from COVID-19 at the facility and there were two previously announced cases of coronavirus among staff. 

Anecdotally, there had been claims of ICE releasing detainees, Lunn said. However, these detainees were released because they had no previous criminal background. She added that the group believed the standard should be on health, not on criminal background.

Sirine Shebaya, executive director of the National Immigration Project of the National Lawyers Guild, said ICE’s detention of people in the immigration system is needless and has always been “excessive.” She stressed that ICE is aware of the risks involved in detaining people, especially the medically vulnerable, and housing people 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,” she 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,” Macdonald said.  “We cannot consign them to a COVID death sentence because of the inadequate conditions in immigration detention facilities.”

The focus placed on 14 individuals instead of a class-action lawsuit was because this is an emergency situation for the medically vulnerable people and so it could move as quickly as possible, Shebaya said. In the future, there could be a possibility to seek expanded release. 

Shebaya said these releases should be done in accordance with public health, which ideally should include testing for COVID-19. “We’re not sure of what ICE’s capabilities are on that front or what their intentions are, but we definitely think that testing would be a good idea in this circumstance.”

Similar cases have been filed across the country including California, New York and Maryland, and court intervention is still pursued because all other methods for release have failed. “One of the really good things that has come out of this is that courts around the country really have been recognizing that there is a national emergency here,” she said, adding they are realizing they should be stepping in to order the release of others in similar circumstances.

The ruling on this case may come in days, not weeks, based on similar cases around the country. None of the people in the facility are being detained for any crimes, Macdonald said.

Through this case, Shebaya said the groups were hopeful to gain release for their clients but also to “shine a light through this litigation on the needless detainment of immigrants.”

ICE was not available for comment by the publishing time of this article. 

— Avery Martinez

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