By Kim Langona
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 53,922 deaths and more than 957,000 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.
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, U.S. District Judge Terry J. Hatter, Jr. 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. Mar. 27, 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.
Following his March 27, 2020 decision in Castillo v. Barr, U.S. District Judge Terry J. Hatter, Jr. has since ordered the release of more than one dozen migrants from Adelanto, one of the country’s largest immigration prisons. In subsequent decisions, Judge Hatter has written brief orders citing Castillo v. Barr for the factual and legal grounds supporting the emergency injunctive relief of immediate release. In reverse chronological order, the cases are as follows: Yanez Montoya v. Wolf, No. 5:20-cv-00713-TJH-JDE (C.D. Cal. Apr. 10, 2020) (ordering the release of Mr. Joaquin Yanez-Montoya with only the conditions that he may not violate any law “or use or possess” alcohol or drugs); Bogle v. Barr, No. 5:20-cv-00650-TJH-FFM (C.D. Cal. Apr. 3, 2020) (ordering the release of Mr. Lionel Prince Deon Bogle with only the conditions that he may not violate any law “or use or possess” alcohol or drugs); Hernandez v. Barr, No. 5:20-cv-00655-TJH-PVC (C.D. Cal. Apr. 3, 2020) (issuing on April 3, 2020, a sealed temporary restraining order and order to show cause); Nguyen v. Marin, No. 5:20-cv-00646-TJH-AGR (C.D. Cal. Apr. 3, 2020) (ordering the release of Mr. An Thanh Nguyen with the conditions of house arrest, except leaving to obtain medical care, and “telephonic and/or electronic and/or GPS monitoring and/or a location verification system and/or an automated identification system” at DHS’s discretion); Perez Cruz v. Barr, No. 5:20-cv-00668-TJH-KES (C.D. Cal. Apr. 3, 2020) (ordering the release of Ms. Gabriela Perez Cruz with only the conditions that she may not violate any law “or use or possess” alcohol or drugs); Singh v. Barr, No. 5:20-cv-00653-TJH-MAA (C.D. Cal. Apr. 3, 2020) (ordering the release of Mr. Varinder Singh with only the conditions that he may not violate any law “or use or possess” alcohol or drugs); Munoz v. Wolf, No. 5:20-cv-00625-TJH-SHK (C.D. Cal. Apr. 2, 2020) (ordering the release of Mr. Martin Munoz with the conditions of house arrest, except leaving to obtain medical care, and “telephonic and/or electronic and/or GPS monitoring and/or a location verification system and/or an automated identification system” at DHS’s discretion); Robles Rodriguez v. Wolf, No. 5:20-CV-00627-TJH-GJS (C.D. Cal. April 2, 2020) (ordering the release of six at-risk migrants with individualized conditions); Sudney v. Wolf, No. 5:20-cv-00626-TJH-JC (C.D. Cal. Apr. 2, 2020) (ordering DHS to either deport Mr. Jimmy Sudney by April 6 or release him with the conditions of house arrest, except leaving to obtain medical care, and “telephonic and/or electronic and/or GPS monitoring and/or a location verification system and/or an automated identification system” at DHS’s discretion); Hernandez v. Wolf, No. 5:20-cv-00617-TJH-KLS (C.D. Cal. Apr. 1, 2020) (ordering the release of Mr. Enrique Francisco Hernandez with the conditions of house arrest, except leaving to obtain medical care, and “telephonic and/or electronic and/or GPS monitoring and/or a location verification system and/or an automated identification system” at DHS’s discretion).
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. Following her initial March 28 order, on April 24, 2020, U.S. District Court Judge Dolly Gee found that ORR and ICE were in violation of the FSA by failing to release minors “without unnecessary delay,” refusing to release those with ongoing legal proceedings or to relatives who had not yet been fingerprinted. Flores v. Barr, No. 2:85-cv-04544-DMG-AGR (C.D. Cal. Apr. 24, 2020). Judge Gee wrote that “ICE deserves some credit for its rapidly-evolving response to the pandemic” following the TRO application, id. at 6, however “under the current extraordinary circumstances in the midst of a pandemic, ORR’s obligation to release minors without unnecessary delay requires moving with greater speed to remove minors from congregate environments where a suitable custodian exists.” Id. at 11. The court also scheduled a May 22, 2020 video status conference to address the government’s compliance with the order. Id. at 21.
On April 8, 2020, a federal judge from the Northern District of California ordered the release of four at-risk migrants who were detained in California. Ortuño v. Jennings, No. 3:20-cv-02064-MMC (N.D. Cal. Apr. 8, 2020). The motion for a temporary restraining order sought the immediate release of approximately one dozen migrants with chronic medical conditions at two facilities—Yuba County Jail and Mesa Verde ICE Processing Facility. The court held that four members of the group failed to demonstrate “a medical condition that places any of them at a ‘higher risk for severe illness from COVID-19,’’” specifically discussing the lack of diagnoses for diabetes, asthma, hypertension, and tuberculosis. Id. at 5-6. However, the court found that four migrants had, in fact, demonstrated their “high risk of severe illness if infected with COVID-19” and their inability to “practice meaningful social distancing” at the detention centers. Id. at 6. The court addressed the government’s concerns about flight risk by “imposing reasonable conditions upon release.” Id. at 8. The motion is still pending for two migrants, and the court issued it moot with respect to those who had been previously released from detention. Id. at 2, 10, n.9.
On April 9, 2020, a federal magistrate judge from the Northern District of California ordered the release of one at-risk migrant from the Mesa Verde ICE Processing Facility in Bakersfield, California. Bent v. Barr, No. 4:19-cv-06123 (N.D. Cal. Apr. 9, 2020). The suit argued that Mr. Bent was at high risk of contracting COVID-19 based on Mesa Verde’s “overcrowding and lack of cleaning supplies,” id. at 4, and his underlying medical conditions of “asthma, hypertension, and prediabetes.” Id. at 3. Citing the decisions in Basank, Thakker, Castillo, and Ortuño, the court found that the detention conditions at issue were in excess of the government’s legitimate objectives, based on Mr. Bent’s claims that guards “have refused to give detainees hand sanitizer, liquid soap, or bleach, and that the dormitories are cleaned by detainees.” Id. at 10-11. The court highlighted that the government did not dispute these assertions, failed to specify “whether and to what extent detainees have access to these supplies,” and stated only that the facility provides sanitation supplies and ICE has increased sanitation. Id. at 10. In acknowledging the severity of the public health crisis, the court issued the conditional release in spite of Mr. Bent’s criminal history, which includes convictions for voluntary manslaughter and attempted murder. Id. at 3.
On April 12, 2020 a federal judge from the Northern District of California ordered the immediate release of a lawful permanent resident from the Yuba County Jail. Doe v. Barr, No. 3:20-cv-02141-LB (N.D. Cal. Apr. 12, 2020). Notably, the migrant was immunocompromised but did not fall neatly within the CDC guidelines—his medical conditions include chronic post-traumatic stress disorder (PTSD), depression, and latent tuberculosis. Id. at 3. The court quoted several medical professionals in finding that: (1) PTSD, anxiety, stress, and depression can lead to a decreased immune system and therefore increased risk of infection, id. at 6, and (2) both active and latent tuberculosis are important risk factors for COVID-19 identification and viral progression may be more severe in those patients. Id. at 7-8. The court ultimately held that the migrant established a “serious question that his continued detention exceeds the government’s legitimate interest in assuring his appearance at immigration proceedings” based on his medical conditions and heightened risk “because detainees at Yuba County jail live in close quarters, cannot practice social distancing, do not have masks, and do not have access to adequate disinfecting and cleaning supplies.” Id. at 16. In its reasoning, the court nodded to other decisions that have considered similar conditions, including Ortuño, Bent, Castillo, Hernández, and Basank, which ultimately found that the facilities did “not meet the constitutional standard for at-risk civil detainees.” Id. at 16.
On April 20, 2020, a federal judge from the Central District of California ordered ICE to conduct custody determinations and consider release for at-risk migrants—specifically detainees over 55, who are pregnant, or who have chronic health conditions—regardless of whether the individual has already applied for or been denied release. Fraihat v. ICE, No. 5:19-cv-01546-JGB-SHK (C.D. Cal. Apr. 20, 2020). ICE is subject to this mandate “as long as COVID-19 poses a substantial threat of harm” to the at-risk migrants. Id. at 39. The decision comes as part of a nationwide class action lawsuit—representing a class of approximately 55,000 migrants in ICE custody on any given day—challenging the government’s (1) failure to ensure that detained migrants receive appropriate medical and mental health care, (2) failure to provide accommodations for those with disabilities, and (3) punitive use of segregation. Most recently, advocates filed for a preliminary injunction amid COVID-19, demanding that ICE assess all medically vulnerable people for risk factors and either immediately provide CDC-compliant medical precautions or release them. The decision granting the preliminary injunction exposed ICE’s nationally deficient response to COVID-19, and the court concluded that the government has “likely exhibited callous indifference to the safety and wellbeing” of the at-risk detained migrants. Id. at 32. “The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” Id. Specifically, the court rebuked ICE’s “month-long failure to quickly identify individuals most at risk of COVID-19 complications and to require specific protection for those individuals; and second, the failure to take measures within ICE’s power to increase the distance between detainees and prevent the spread of infectious disease, for example by promptly releasing individuals from detention to achieve greater spacing between medically vulnerable individuals and the general population.” Id. at 31. Noting that the “density of the detained population” is among the most important factors in the spread of the disease, id. at 33, the court suggested that ICE could, but has elected not to, reduce the detained population by half by releasing migrants who have no prior convictions or pending charges. Id. at 33, n.31. The court also reasoned that continued detention for the at-risk migrants is “likely ‘arbitrary or purposeless,’ and [is] excessive given the nature and purpose of civil detention.” Id. at 34 (citations omitted). Encapsulating the tone of the decision, the court wrote that “[p]articipation in immigration proceedings is not possible for those who are sick and dying, and is impossible for those who are dead.” Id.
On April 23, 2020, Judge Hatter from the Central District of California granted a preliminary injunction in a class-action lawsuit for the approximately 1,300 migrants detained at the Adelanto ICE Processing Center (Adelanto) in California. Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC (C.D. Cal. Apr. 23, 2020). The suit argued that Adelanto’s conditions—including the bunk beds, cells, sinks, showers, toilets, and food preparation and service—violated the detained migrants’ Fifth Amendment Due Process rights because inadequate social distancing increased their risk of exposure to COVID-19. The court’s decision includes a list of 34 items with which the government must comply, including: (1) “Adelanto shall not accept any new detainees;” (2) the government shall immediately reduce Adelanto’s detainee population so that remaining detainees can “maintain a social distance of 6 feet from each other at all times and at all places, including while sleeping, eating, showering, and going about other daily activities, except when there is a medical necessity or safety emergency;” (3) the government shall immediately begin reducing the population and complete the task by May 4. Id. at 1-2. The government appealed Judge Hatter’s decision and, on April 25, the Ninth Circuit issued an emergency order freezing the preliminary injunction for appellate review.
On April 14, 2020, 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 at-risk migrants in detention at the Aurora ICE Processing Center outside of Denver, Colorado. Codner v. Choate, No. 1:20-cv-10150-KLM (D. Colo. Apr. 14, 2020). The 14 detained plaintiffs include 11 transgender women, most of whom have weakened immune systems due to HIV diagnoses and other medical conditions. The advocates are demanding the migrants’ immediate release, arguing that “the facility has already had confirmed cases of COVID-19” in five employees, at least one of whom had direct contact with detained migrants. Id. at 2. The advocates argue that ICE is unable to keep the migrants safe, citing inadequate cleaning procedures, social distancing practices, COVID-19 screening and testing, and medical personnel who could manage an infectious disease outbreak. Id. at 12-15. Within 24 hours of filing in federal court, ICE used its discretionary authority to release eight of the migrants. The court has yet to issue any orders at the time of this post.
On April 24, 2020, a federal district judge from the District of Colorado ordered the release of one at-risk migrant from the Aurora Contract Detention Facility outside of Denver, Colorado. Essien v. Barr, No. 1:20-cv-01034-WJM (D. Colo. Apr. 24, 2020). In deciding the propriety of Mr. Essien’s petition for writ of habeas corpus under the circumstances—which it wrote raised “many interesting theoretical and philosophical questions”—the court ultimately decided that the petition was proper based on controlling precedent stating that “when a prisoner or detainee ‘is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.’” Id. at 6 (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In its decision, the court spent significant energy on the question of whether Mr. Essien was “likely” to suffer irreparable harm absent an injunction. It ultimately concluded that his “risk of developing a severe case of COVID-19 is likely,” id. at 16, based on asymptomatic community transmission in combination with ICE’s inability to comply with CDC social distancing guidelines and Mr. Essien’s identity as a fifty-five-year-old male of “black African origin” living with hypertension, “a history of recurring pneumonia,” “borderline” diabetes, and “a body mass index of 34.85.” Id. at 10-16. In weighing the balance of harms and public interest in releasing Mr. Essien, the court boldly wrote that “ICE appears to want to keep Essien in detention more to prove a point about its authority to detain generally, despite COVID-19, rather than out of any consideration specific to Essien.” Id. at 18. In a footnote, the court also questioned the Tenth Circuit’s rigid preliminary injunction standard in contrast to other Circuit Courts’ more flexible approach, stating that, “[d]octrinal rigidity is, of course, directly antithetical to the purpose of equity jurisdiction.” Id. at 19, n.8. It hypothesized that “[t]here are likely many detainees whose cases are not as clear-cut as Essien’s, and therefore must remain in a situation where they are being exposed to a non-negligible risk of serious illness and even death—all in the name of doctrinal rigidity.” Id.
The Immigration Law and Policy Clinic at the University of Denver Sturm College of Law has also filed a petition for habeas corpus, seeking the immediate release of one at-risk migrant from the Aurora Contract Detention Facility. Aguayo v. Martinez, No. 1:20-cv-00825 (D. Colo. Mar. 26, 2020). The suit brings conditions-of-confinement and prolonged detention claims, arguing that Mr. Aguayo’s continued detention since July 2019 without bond amid COVID-19 violates his Fifth Amendment Due Process rights. The court has yet to issue any orders at the time of this post.
On April 22, 2020, a federal magistrate judge from the Southern District of Florida declined to order the release of migrants detained at three South Florida facilities: the Krome Detention Center, the Broward Transitional Center, and the Glades Detention Center. Gayle v. Meade, No. 1:20-cv-21553-MGC (S.D. Fla. Apr. 22, 2020). The class action lawsuit sought the immediate release of all people held at these detention centers—approximately 1,400 migrants in total—based on ICE’s inability to follow CDC guidelines on social distancing and quarantining amid the pandemic. Id. at 2-3. United States District Judge Marcia G. Cooke referred the motion for an emergency hearing and a motion for a TRO/preliminary injunction to Magistrate Judge Jonathon Goodman. Id. at 5-6. In turn, Judge Goodman wrote a 69-page report and recommendation (R & R), concluding that the court should not order immediate release on jurisdictional grounds because the Eleventh Circuit “does not permit a detained person to pursue a habeas corpus remedy of being released from custody even if cruel and unusual punishment were to be established” and “the remedy is to discontinue the practice or correct the condition causing the unconstitutional punishment.” Id. at 6 (emphasis in original). Nonetheless, Judge Goodman recommended that the court require ICE to conduct a “good faith” internal review of its programs and protocols to release migrants “with the goal of substantially increasing the rate and volume of detainees being released from the three facilities . . . .” Id. at 6-7 (emphasis in original). The court wrote that ICE could still refuse to release anyone, a “hypothetical result [that] would be horribly disappointing and extremely distressing, and it would undermine the spirit of this R & R” but would fall short of contempt of court. Id. at 7. The R & R also suggested that the court impose reporting requirements for the three facilities to ensure ICE’s compliance with this “good faith” review, including: twice-weekly reports on migrants that ICE releases, information on at-risk detained migrants, twice-weekly reports on migrants that have no prior criminal convictions or pending charges, and reports on the number of migrants being mandatorily detained pursuant to 8 U.S.C. § 1226(c). Id. at 8-9. Among his recommendations, Judge Goodman also suggested that the court require ICE to comply with CDC guidelines for providing soap, water, and cleaning materials to the detained migrants, and that ICE give all migrants exhibiting COVID-19 symptoms a mask to be replaced once per week. Id. at 9. The R & R also suggested that “the parties  agree on a neutral, Court-appointed expert to inspect the three facilities and file a report with opinions” regarding (1) the number of migrants ICE would need to release to achieve maximum social distancing and (2) whether ICE was meeting the agency’s own Pandemic Response Requirements. Id.
On April 10, 2020, a federal judge from the Middle District of Georgia declined to release eight at-risk migrants currently detained at the Stewart Detention Center and Irwin Detention Center. Martinez v. Donahue, No. 7:20-cv-00062-CDL-MSH (M.D. Ga. Apr. 10, 2020). The court held that it lacked jurisdiction to decide the issue of preliminary injunctive relief. First— looking to unpublished Eleventh Circuit case law—the court found that it had no jurisdiction to decide the migrants’ habeas corpus claim because it was based upon unconstitutional conditions of confinement. Id. at 5. Second, the court held that release is not an appropriate remedy for the migrants’ “implied equitable relief cause of action to remedy constitutional violations.” Id. Nonetheless, the court explicitly emphasized that the ruling was narrow in scope and suggested that the migrants could “amend their motion to seek remedies other than release from detention.” Id. Furthermore, the court stated that if the record supported the migrants’ argument “that they face substantial risk of serious physical harm and/or death from unconstitutional conditions that cannot be modified to reasonably eliminate those risks,” it might find that habeas relief is warranted. Id. at 3 (emphasis in original).
On April 9, 2020, a federal judge from the Central District of Illinois ordered the immediate release of an at-risk migrant from the Jerome Combs Detention Center in Kankakee, Illinois. Hernandez v. Kolitwenzew, No. 2:20-cv-02088-SLD (C.D. Ill. Apr. 9, 2020). In a succinct three-page order, the court held that the government has taken inadequate measures to protect Mr. Hernandez amid COVID-19 given that he “suffers from multiple ailments.” Id. at 2. “Indeed, it would be difficult for any measures in an institutional setting to be sufficient to adequately address his health needs.” Id. The court also noted that Mr. Hernandez’s affidavits assert that he is “already receiving inadequate health care for his existing conditions,” and his continued detention was only because he could not afford his $2,000 bond. Id.
On April 10, 2020, a federal judge from the Central District of Illinois ordered the immediate release of an at-risk migrant from the Jerome Combs Detention Center in Kankakee, Illinois. Favi v. Kolitwenzew, No. 2:20-cv-02087-SEM-TSH (C.D. Ill. Apr. 10, 2020). In its brief order, the court noted that Mr. Favi’s “history of serious pneumonia” places him in the high-risk category and that the government’s precautions are “inadequate to protect the Petitioner and sufficiently address his health needs.” Id. at 2-3. The court acknowledged that there is no direct evidence that COVID-19 is present at that particular facility. Id. at 3. Nonetheless, it reasoned that testing has been limited, some carriers are asymptomatic, and “other courts from across the country  have found that the courts need not wait until the virus erupts in a prison to act.” Id.
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. On April 6, 2020, the Eastern District of Louisiana declined to order the migrants released, reasoning that it lacked jurisdiction. Dada v. Witte, No. 2:20-cv-01093-GGG-KWR (E.D. Apr. 6, 2020). The court disagreed with Plaintiffs that the ICE New Orleans Field Office is the “immediate custodian” of all the class members who span Louisiana, Mississippi, and Alabama. Id. at 6. Instead, it reasoned that “the wardens of each facility in which the detainees are confined are the ‘immediate custodians’ of Plaintiffs.” Id. at 7. Because the Eastern District of Louisiana “lacks jurisdiction over the wardens, it lacks jurisdiction over Plaintiffs’ § 2241 claims,” wrote the court. Id. at 7. In a footnote, the court stated that it dismissed the claims without prejudice so that counsel could sever the Plaintiffs into groups and file them in the appropriate federal district courts. Id. at 7, n.5.
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.
On March 26, 2020, one day after delivering the oral opinion, a federal judge in the District of Massachusetts ordered one migrant released from civil detention at the Plymouth County Correctional Facility. Calderón Jiménez v. Wolf, No. 1:18-cv-10225-MLW (D. Mass. Mar. 26, 2020). The migrant’s advocates filed an emergency motion requesting his release, arguing that he was “locked up in a facility in which an employee ha[d] already been confirmed to have COVID-19.” In its oral decision, the court emphasized that the man had not been convicted of any crimes, yet, ICE held him in detention for approximately six-and-a-half months. The court ordered him released with conditions of electronic monitoring and house arrest absent a medical emergency.
On April 3, 2020, U.S. District Judge William G. Young of the District of Massachusetts ordered the release of three migrants held at Bristol County House of Corrections with conditions of a 14-day self-quarantine and house arrest with electronic monitoring. Savino v. Hodgson, No. 1:20-cv-10617-WGY (D. Mass. Apr. 4, 2020). The decision came as part of a larger proposed class action filed by Lawyers for Civil Rights—originally requesting the release of nearly 150 migrants held at Bristol County House of Corrections and C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts. Notably, the court requested that the advocates supply a list of 50 detainees whose release could be reviewed by the court in groups of ten. As promised, Judge Young started that process on April 7, 2020, and ordered the release of eight of the ten migrants. In an unexpected turn of events on April 8, 2020, Judge Young opted to certify the same class of migrants seeking release which he had previously “declined to certify . . . but provisionally certified five subclasses.” Savino v. Hodgson, 1:20-cv-10617-WGY at 13 (D. Mass. Apr. 8, 2020). The court reasoned that differences among the migrants guided his decision; however, “[u]pon reflection . . . the Court determine[d] that the admittedly significant variation among the Detainees does not defeat commonality or typicality” required for class certification. Id. at 21. The court explained that it was particularly troubled by the fact that “even perfectly healthy detainees are seriously threatened by COVID-19 . . . [T]he virus is gravely dangerous to all of us.” Id. The court proceeded to explain its inherent authority to order bail for the class members while the habeas corpus petitions are pending. Id. at 26-28. Judge Young then ordered the release of 15 migrants on April 9 and ten more on April 10. As of April 16, 2020, reports state that Judge Young has ordered a total of 44 migrants released, and he expects to have decided the fate of the entire class of 148 migrants by April 25.
On April 5, 2020, a federal judge in the Eastern District of Michigan ordered a lawful permanent resident—subject to mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c)—released from the Calhoun County Correctional Facility. Malam v. Adducci, No. 2:20-cv-10829-JEL-APP (E.D. Mich. Apr. 5, 2020). The suit argued that her “continued detention violate[d] her Fifth Amendment rights by exposing her to the substantial risk of illness and death” based on her lengthy list of medical conditions. Id. at 1, 3. Importantly, the court disagreed with the government that the risk of exposure in the community is greater than within the detention facility, stating that “[i]n the fact of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions . . . .” Id. at. 28-29. The court commended the government for its mitigation efforts; however, it stated that “as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks.” Id. at 30.
On April 9, 2020, a federal judge from the District of New Jersey ordered the release of three at-risk migrants from the Essex County Correctional Facility (ECCF) in Newark, New Jersey. Olivo v. Tsoukaris, No. 2:20-cv-03481-JMV (D.N.J. Apr. 9, 2020). Agreeing with Judge Jones’s analysis in Thakker v. Doll, the court held that the government need not have an express intent to punish the migrants for them to succeed on a Fifth Amendment due process claim. Id. at 12-13. The court drew on a hypothetical to make its point—if migrants were detained in the “direct path of a hurricane and the facility was unlikely to withstand the force of the storm,” then the government would maintain its legitimate interest in detaining them to appear for court, but it would have no legitimate interest in detaining them at that particular facility. Id. at 14. The court reasoned that “there are certain realities that neither ECCF or ICE can overcome . . . [J]ails were not designed to fight pandemics, and, unfortunately, such facilities can become perfect vessels for virus transmission.” Id. at 15.
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, 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 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.
On April 1, 2020, a federal judge in the Southern District of New York ordered the government to release one migrant pending resolution of his habeas petition. Avendaño Hernández v. Decker, 1:20-cv-01589 (S.D.N.Y. Mar. 31, 2020). The man—Gaspar Avendaño Hernández—made headlines earlier this year, when ICE officers tased him 15 to 20 times and shot his girlfriend’s son in the face while serving him with a removal order. The incident caused Mr. Avendaño Hernández severe medical complications that formed the basis of the judge’s decision, including “a right bundle branch block” and “rhabdomyolysis . . . potentially resulting in ‘damage to the kidneys, dangerous electrolyte abnormalities, [or] death.’” Id. at 2. The order stated that, “in the context of the COVID-19 epidemic, these conditions render Petitioner peculiarly at risk of serious injury or death in the event he contracts COVID-19,” and further found that the government had failed to sufficiently address his severe health issues. Id. at 4-6.
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, 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 April 3, 2020, following a hearing on his application for a temporary restraining order, a federal judge in the Southern District of New York ordered the government to release a migrant from civil detention at the Orange County Correctional Facility. Nikolic v. Decker, 1:20-cv-02500-LGS (S.D.N.Y. Apr. 3, 2020). The judge provided specific release conditions, including an ankle monitor, weekly telephonic check-ins, and that Mr. Nikolic must comply with New York’s stay-at-home executive order (EO 202.6) during COVID-19.
On April 10, 2020, a federal judge from the Southern District of New York ordered the release of two at-risk migrants detained at the Essex County Jail. Valenzuela Arias v. Decker, No. 1:20-cv-02802-AT (S.D.N.Y. Apr. 10, 2020). The men suffer from serious medical conditions—including breathlessness, chronic pain, post-traumatic stress disorder, depression, anxiety, and an “unexplained mass” that requires prompt surgery—putting them at imminent risk of death or serious injury if exposed to COVID-19. Id. at 2, 7. Acknowledging that ICE and the Essex County Jail have taken limited steps to mitigate spread of the virus, the court reasoned that “[t]hese measures likely result in some reduction of risk of infection, but they are far from sufficient.” Id. at 9. The court opined that the government’s response has been “astonishingly slow in light of the fast-moving emergency posed by COVID-19,” id. at 18, n.3, and it concluded that ICE “know[s], or should know, that these steps are not enough to protect vulnerable detainees like Petitioners from an unreasonable risk of serious damage to their health.” Id. at 18. In its analysis, the court cited to the multitude of other cases across the country also ordering migrants’ release from ICE custody, including Coronel, Velesaca, Jones, Basank, Avendaño Hernandez, Hope, Thakker, and Malam.
On April 10, 2020, a federal judge from the Western District of New York declined to order the release of one migrant from the Buffalo Federal Detention Facility (BFDF) in Batavia, New York. Hassoun v. Searls, No. 1:19-cv-00370-EAW (W.D.N.Y. Apr. 10, 2020). The court held that Mr. Hassoun had not raised a “substantial claim that [the government] has exhibited deliberate indifference” to the risk that COVID-19 poses given his “asthma, coronary artery disease, hypertension, type 2 diabetes, and hyperlipidemia.” Id. at 6, 15. Instead, the court highlighted the government’s “substantial, aggressive, action to mitigate the risk,” id. at 15, including reducing the population at BFDF, expanding the practice of temperature screenings, requiring medical personnel and facility employees to use personal protective equipment, and offering Mr. Hassoun an N95 mask. Id. at 16. The court further reasoned that Mr. Hassoun’s solitary confinement provided circumstances “particularly well-suited to avoiding infection,” id., and used this fact to distinguish it from other cases that ordered release where the migrants were housed in general population and subjected to congregate, communal living situations. Id. at 18-19. Nevertheless, the court imposed a filing deadline for the government to provide information about BFDF given the “rapidly evolving” situation, including information about the facility’s number of confirmed cases and its COVID-19 protocols. Id. at 21-22.
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.
Roughly a month after ordering the release of these individuals, the court concluded that facilities had taken preventative steps to sufficiently reduce the risk of infection, thus it rescinded the release order for seven petitioners.
On April 6, 2020, a federal judge from the Middle District of Pennsylvania declined to release a man who tested positive for COVID-19 while detained at the Pike County Correctional Facility (PCCF) in Pennsylvania. Camacho Lopez v. Lowe, No. 3:20-cv-00563-CCC (M.D. Pa. Apr. 7, 2020). According to the court, “Camacho Lopez seeks immediate release from custody based on what he perceives to be constitutionally deficient conditions of confinement that threaten his health and life.” Id. at 9-10. To determine its ability to grant relief, the court analyzed case law from the Supreme Court, its own Circuit, and other jurisdictions, ultimately concluding that a limited subset of conditions-of-confinement claims can support habeas relief. Id. at 9-13. Importantly, it determined that Mr. Camacho Lopez’s habeas petition fell within that limited subset because it involved “extraordinary conditions of confinement . . . where the petitioner has tested positive for and been hospitalized by a potentially deadly pandemic virus and claims that officials cannot properly treat him . . . .” Id. at 13. In its discussion of the merits, the court made explicit that this case—where Mr. Camacho Lopez already contracted COVID-19 and was challenging lack of medical treatment—is different from Thakker v. Doll where Judge Jones granted habeas relief to migrants at risk of contracting the virus based on (1) “their heightened vulnerability . . . and (2) the conditions of confinement in several ICE detention facilities, including PCCF.” Id. at 15, n.5. The court ultimately concluded that habeas relief was not warranted for Mr. Camacho Lopez, reasoning that the PCCF staff was not “deliberately indifferent” to his medical needs because the records “establish that [Mr.] Camacho Lopez was being regularly monitored and appropriately treated.” Id. at 16. The court also took care to highlight that Mr. Camacho Lopez was twice-removed and that both the government and “the public have an interest in enforcement of these removal orders.” Id. at 20.
On April 7, 2020, Judge Jones from the Middle District of Pennsylvania ordered the release of 22 at-risk migrants from the York County Prison and Pike County Correctional Facility. Hope v. Doll, No. 1:20-cv-00562 (M.D. Pa. Apr. 7, 2020). The court highlighted that these facilities represent two of the three facilities considered in Thakker v. Doll, where Judge Jones had previously found that the threat of an outbreak constituted irreparable harm. Id. at 7, n.5. The court lamented that it had “been proven correct in this regard,” stating that, at the time of the decision, one detainee at York County Prison and eight detainees or employees at the Pike County Correctional Facility had tested positive for COVID-19. Id. at 7. The court reasoned that the government has continuously failed to institute effective containment measures to protect the migrants. Id. at 8. In its conclusion, the court brazenly wrote that it is
mindful that judicial decisions such as these are both controversial and difficult for the public to absorb. It is all too easy for some to embrace the notion that individuals such as Petitioners should be denied relief simply because they lack citizenship in this country. However, Article III Courts do not operate according to polls or the popular will, but rather to do justice and to rule according to the facts and the law.Id. at 13-14.
That same day, Judge Jones temporarily stayed his own release order after the government asked him to reconsider the decision. Three days later, on April 10, Judge Jones denied the motion to reconsider, and the government immediately appealed to the Third Circuit Court of Appeals. U.S. Circuit Judge D. Brooks Smith has since temporarily stayed the district court’s order to release the 22 migrants.
On April 9, 2020, a federal judge from the Middle District of Pennsylvania declined to order the release of one migrant detained at Pike County Correctional Facility (PCCF) in Pennsylvania. Umarbaev v. Lowe, No. 1:20-cv-00413-YK-EB (M.D. Pa. Apr. 9, 2020). The suit argued that he was entitled to habeas relief because (1) the IJ erred in denying him bond in March and (2) his continued detention amid COVID-19 violated due process because of his underlying medical conditions and DHS’s inability to protect him. Id. at 9. With respect to his COVID-19 claim, the court relied on its own reasoning in Camacho Lopez and Thakker to determine that it properly had jurisdiction to grant habeas relief. Id. at 11-12, n.2. Nevertheless, the court concluded on the merits that he was not entitled to release, while also acknowledging that “its review raises the specter of disparate result.” Id. at 16. The court emphasized that a writ of habeas corpus requires the petitioner to meet demanding standards, and “habeas review is entirely individual” based on “a rapidly changing landscape that includes the state of the COVID-19 pandemic, current conditions in ICE facilities, and the evolving response by ICE and facility officials to medical needs.” Id. at 17. Here, the court reasoned, ICE had adequately responded to the mans’ specific medical needs and to COVID-19 more generally at PCCF. Id. at 15-16.
On April 9, 2020, a federal judge from the Middle District of Pennsylvania declined to order the release of one migrant detained by ICE at the York County Prison. Verma v. Doll, No. 4:20-cv-00014-CCC-WIA (M.D. Pa. Apr. 9, 2020). The court highlighted that Mr. Verma “has a significant medical history” including heart problems, id. at 4, however he never indicated that “he has shown symptoms of COVID-19 or that he has received inadequate preventative care with respect to COVID-19.” Id. at. 5. Despite finding that it had jurisdiction over Mr. Verma’s “sufficiently ‘extreme’ circumstances,” the court ultimately held that he failed to show a likelihood of success on either of his due process or deliberate indifference claims. Id. at 9. Interestingly, the court took issue with Mr. Verma’s overreliance on the declarations and reasoning from Thakker, stating that Mr. Verma failed to “describe his conditions or his treatment during the COVID-19 pandemic” and the court was left “[w]ithout particularized evidence.” Id. at 10-11 (emphasis in original). The court stressed that the conditions at York County Prison are “markedly different” from when Judge Jones decided Thakker, and the government has taken “reasonable steps to limit the spread throughout its facility” because staff and detainees now wear N95 or surgical masks in a variety of situations. Id. at 12-13. The court also seized the opportunity to highlight that Mr. Verma’s criminal and immigration history are “worrisome,” and that his “legal detention isolates him from society at large and allows him to receive appropriate medical care free of charge.” Id. at 14.
On March 27, 2020, a federal judge from the Southern District of Texas declined to release a man who is pursuing immigration relief under the United Nations Convention Against Torture. Sacal-Micha v. Longoria, No. 1:20-cv-0037 (S.D. Tex. Mar. 27, 2020). The habeas corpus petition sought Mr. Sacal’s immediate release based on his age and serious underlying medical conditions. Id. at 1. The court ultimately held that he had “not demonstrated a substantial likelihood of success on the merits of any of his claims.” Id. at 10. The court acknowledged that Mr. Sacal’s age and medical conditions “render him particularly vulnerable to serious complications from the virus.” Id. at 10. But, it ultimately concluded that “the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release.” Id. at 10. The court reasoned that Mr. Sacal’s habeas challenge focused on the conditions of his confinement, id. at 6, however, he failed to meet the “deliberate indifference” standard required to establish a constitutional violation for a conditions-of-confinement claim. Id. at 7-8.
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.
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 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.” On April 13, 2020, U.S. District Judge James Boasberg held a telephone conference for the matter and declined to grant the migrants’ release. Reasoning that they had failed to demonstrate the temporary restraining order was necessary, Judge Boasberg instead ordered the government to provide the following information by April 22: (1) statistics on detainees and releases, (2) compliance with CDC guidelines, (3) medical capabilities (including testing), (4) treatment plans, (5) coordination with local health care, and (5) personal protective equipment (PPE) supplies.
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.
-Last updated April 27, 2020.