US judge orders releases at ICE detention facilities

Immigrations and Customs Enforcement must release more detainees from two Northern California detention centers to ensure state-mandated social distancing measures are followed, a federal judge ruled Wednesday.

In a sharp rebuke of the agency's delay in slashing populations at these types of facilities, U.S. District Judge Vince Chhabria in San Francisco ordered ICE to begin facilitating individual bail applications for more than 400 people at the Mesa Verde Detention Center and Yuba County Jail.

"There is no need to repeat a discussion of the 'tinderbox' risk of the virus spreading in crowded detention facilities," he wrote. "Nor is there need to recount the health risks posed by the virus -- not just for people in high-risk categories but for healthy people as well."

The detainees filed a class action last Monday seeking to require ICE to immediately create and implement a protocol to drastically reduce the number of people at the two facilities. They argued social distancing to protect themselves from COVID-19 infection is impossible because of cramped and unsanitary conditions.

Department of Justice attorney Adrienne Zack had argued the agency should instead be ordered to release a set number of people from the facilities instead of mass releases. He noted neither of the sites have any COVID-19 cases.

Chhabria wrote in the Wednesday order, "ICE is systematically violating the due process rights of this proposed class of civil detainees, because current conditions at the facilities create an unreasonable risk of harm from infection."

Initial steps to ensure social distancing measures that can be followed were outlined in the the judge's order.

ICE is required to immediately begin providing the court and plaintiffs' attorneys with information and records for every detainee to submit applications to be released on bail, according to the ruling. This includes names, ages, health risks and criminal history.

Chhabria and various U.S. magistrate judges in the Northern District will consider the bail requests over a 14-day period. He will then decide whether to issue a preliminary injunction to force ICE to take further measures to ensure social distancing and other protections for the remaining detainees.

"Hundreds of detainees are held in two crowded detention centers, and ICE has done virtually nothing to ensure their safety," said San Francisco Deputy Public Defender Emilou MacLean, who is representing the plaintiffs. "Judge Chhabria rightly recognized the urgency of the current moment. Tens of thousands of people across the country have died and the number of confirmed cases in ICE detention centers is skyrocketing."

ICE has maintained it is in the process of reducing populations at both detention centers. At Mesa Verde, the number of detainees was cut from 355 on March 11 to 283 on April 25, according to court filings.

While acknowledging "modest measures" ICE has taken, Chhabria replied it's "undisputed it has not come close to achieving social standing for most detainees," pointing to detainees continuing to sleep in barracks-style dorms within arm's reach of one another. He found it doesn't matter that no detainees are currently infected with the virus because people are transferred from Santa Rita Jail, which does have a confirmed case. Chhabria also blasted defense attorneys for failing to provide a list of detainees with health vulnerabilities.

"The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE's list of priorities," he wrote.

ICE did not immediately respond to requests for comment Wednesday. Rivas v. Jennings, 20-CV-02731 (N.D. Cal., filed April 20, 2020).

The detainees are represented by a coalition of attorneys from the San Francisco public defender's office, the ACLU, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Lakin & Wille LLP and Cooley LLP.

Chhabria will assess progress in compliance with his ruling and discuss next steps to consider the bail applications at a Thursday hearing.