Federal judge criticizes ICE detention

A federal judge called treatment of detainees at two Northern California immigrant lockups "downright irrational" and "inhumane," but refused to force Immigration and Customs Enforcement to adopt measures plaintiffs say would prevent a COVID-19 outbreak.

In a scathing critique of the agency's response to the pandemic, U.S. District Judge Vince Chhabria of San Francisco on Tuesday granted a preliminary injunction in favor of detainees at Mesa Verde and Yuba County Jail to maintain reduced capacity to allow for state-mandated social distancing.

But the judge refused to order ICE to stop transferring detainees into the facilities or to cap the number of people who can be housed there. Plaintiffs' lawyers and immigrant advocates have argued both the proposals are necessary to prevent a virus outbreak.

"ICE could conceivably find a way to change the way a facility is used or configured so as to allow more detainees to enjoy the same amount of distancing that currently exists," the judge wrote.

American Civil Liberties Union senior counsel William Freeman, representing the plaintiffs, called the judge's injunction "an improvement over what it was, but it's not good enough, and it still creates a highly elevated danger for people put inside."

ICE spokesperson Jonathan Moor declined to comment. Department of Justice attorneys did not respond to requests for comment.

Justice Department attorney Adrienne Zack has argued that the agency has broad discretion to relocate detainees. He said it does not transfer those who have Covid-19 symptoms or are awaiting test results.

More than 400 immigrants detained at the facilities sued ICE in April for their release, claiming state-mandated social distancing is impossible because of cramped and unsanitary conditions.

Since then, Chhabria has granted 95 detainees temporary release out of nearly 200 requests. The detention centers now hold 200 people opposed to 427 when the class action was filed.

Reduction in population allows detainees to sit at separate dining tables and sleep on alternating bunk bed levels, Chhabria found. Rivas v. Jennings, 20-CV-02731 (N.D. Cal., filed April 20, 2020).

Plaintiffs' attorney Emilou MacLean, a San Francisco deputy public defender, said ICE opposed release in every case.

While she said progress has been made and that the case is not over, Bree Bernwanger of the Lawyers' Committee for Civil Rights in San Francisco said, "The constitutional minimum has still not been met."

ICE continues to transfer detainees from centers with confirmed coronavirus cases to Mesa Verde and Yuba County jail, lawyers for the detainees said.

In arguing that no further intervention is necessary to address conditions at the facilities, ICE filed a declaration from Mesa Verde ICE official Alexander Pham on how new arrivals are processed and screened for the virus. All new arrivals from other centers are placed in isolation for 14 days prior to being released into the general population, Pham said.

But plaintiffs' attorneys said they knew of at least one detainee who was not tested or quarantined after being transferred from La Palma Correctional Facility, which had 78 confirmed Covid-19 cases.

ICE submitted a new declaration in which Pham stated his prior statements were "inadvertently inaccurate."

The agency has knowingly transferred detainees with COVID-19 in at least one other case. An ICE official submitted a declaration in Louisiana federal court in April that a detainee who tested positive for the virus at the Catahoula Detention Center in Harrisonburg was transferred to the Richwood Correctional Center.

Richwood had 29 cases at the time, according to court filings. There were 65 positive cases in May.

"Many of these positive cases were transferred from other facilities to Richwood," the official told the court.

Chhabria wrote there's still "considerable uncertainty" over how new arrivals are being screened at Mesa Verde and how many detainees have been tested for the virus.

ICE had tested two detainees when the judge asked in April. He will consider on Thursday whether an evidentiary hearing is necessary.