Immigration officials must do more to curb virus in lockups, lawyer says

Attorneys representing detainees at two Northern California detention centers accused U.S. Immigrations and Customs Enforcement of refusing to change its medical plan to care for those who have tested positive for COVID-19 or have an elevated risk of complications from the virus despite a massive surge in cases at one of the facilities a month ago.

Claiming the agency's proposal is too vague to even describe, let alone improve upon, plaintiffs' lawyer Emilou MacLean argued in a Tuesday motion that ICE did nothing but "dress up" ineffective protocols that failed to anticipate a foreseeable outbreak and prevent its spread.

"Their plan basically says trust us," the deputy San Francisco public defender said. "At this point, that's impossible."

More than 400 immigrants detained at Mesa Verde and Yuba County Jail sued ICE in April for their release, claiming state-mandated social distancing to protect themselves from COVID-19 is impossible because of cramped an unsanitary conditions. Rivas v. Jennings, 20-cv-02731 (N.D. Cal., filed April 20, 2020).

While U.S. District Judge Vince Chhabria granted a preliminary injunction in favor of the detainees to maintain reduced capacity, Mesa Verde saw an outbreak of the virus in August that led to 56 of 104 total people testing positive. He ordered ICE to discuss with plaintiffs' attorneys a formal policy on how to care for those who are sick or are vulnerable to complications.

"There's no question that this outbreak could have been avoided," the judge said at an emergency hearing to address the situation, citing the defendants' "deliberate indifference."

All 56 people who have had the virus at Mesa Verde, which is now at less than 25% capacity with 95 detainees, have recovered, according to the Justice Department.

In their objection to the proposal, plaintiffs' attorneys said ICE proposed an unresponsive medical plan that failed to address complaints that have been raised.

For instance, Chhabria ordered the plan should address how the agency will provide information to non-English speaking detainees about managing symptoms and how it will ensure it promptly responds to those requesting medical assistance.

But ICE only provided that "[t]he detainees are educated, in their language, for better understanding their underlying illnesses," and that they are provided translation assistance when they test positive, according to its proposal.

Other issues that went unanswered include explicit nursing protocols for class members in different states regarding intake and quarantine procedures and how to immediately provide care to those with urgent health concerns.

"Overall, the Medical Plan is too vague to be useful," MacLean wrote. "It lacks the kind of actionable and explicit guidance indicative of a plan. Nor does it outline who is responsible for enacting the plan or how it will be implemented."

To support its proposal, defendants claimed they're exceeding guidelines from the Centers for Disease Control and ICE Health Service Corps on managing COVID-19. Their new protocols, they said, include screening for symptoms twice per day, directing a medical provider to review vital signs and having a nurse on call all day.

Responding to accusations they were directed to negotiate with plaintiffs to revise their plan, ICE and the GEO Group, a private company that manage Mesa Verde, argued that requiring changes would effectively constitute to a new injunction order. They said detainees are safe because "most will likely recover via rest and fluids."

"The medical care provided at Mesa Verde already complies with all applicable constitutional and legal requirements," Assistant U.S. Attorney Shiwon Choe wrote. "Plaintiffs have not made a clear showing that this level of medical care for... all 59 detainees who have tested positive for COVID-19 at any time, is so constitutionally deficient that a further court order is warranted."

MacLean countered ICE is "hoping that nothing goes wrong and that no one is looking behind the curtains."

The Justice Department and GEO Group attorney Susan Coleman did not immediately respond to requests for comment.

Chhabria will assess the plan at a status conference next Tuesday.