SAN DIEGO (CN) — Measures taken to significantly reduce U.S. Immigration and Customs Enforcement’s detainee population at a privately run immigration facility with the most severe Covid-19 outbreak in the country aren’t enough to guarantee future immigrants don’t get sick, the American Civil Liberties Union argued Friday.
The group is asking the federal government be restrained from continuing to detain medically vulnerable immigrants.
ACLU attorney Monika Langarica emphasized the threat of contracting coronavirus for detainees at the CoreCivic-run Otay Mesa Detention Facility hasn’t subsided just because the privately run detention center has reduced its population during the pandemic from a little over 50% of its capacity to around 39% of its capacity.
“Release is the only appropriate measure for medically-vulnerable people under current detention conditions,” Langarica said.
The immigration detention facility has had the largest Covid-19 outbreak among immigration detention centers nationwide.
The outbreak prompted the ACLU to file a class action last month seeking the release of detainees at the Otay Mesa Detention Facility and nearby Imperial Region Detention Facility, arguing detention conditions made them susceptible to contracting Covid-19 and becoming seriously ill or dying.
One person who contracted the virus while detained in the Otay Mesa Detention Facility has since died.
Assistant U.S. Attorney Samuel Bettwy confirmed to U.S. District Judge Dana Sabraw at a telephonic court hearing Friday of 220 ICE detainees tested at the facility, 160 have tested positive for the novel coronavirus.
While the number of negative coronavirus tests has risen, and the peak of the viral outbreak in the facility “is leveling out at a very low level,” Bettwy said, six people in the last week have still tested positive for the virus.
And the first positive Covid-19 test was also confirmed by Bettwy Friday at the Imperial Regional Detention Facility, which had managed to dodge the virus until the positive test was received Thursday night.
The results for a second test are pending, Bettwy added.
Langarica argued the handful of new positive cases is reason enough to find the continued detention of medically-vulnerable immigrants at Otay Mesa violates their Fifth Amendment due process rights by putting them at “substantial risk of suffering serious harm.”
She said the reduction of the detention facility’s immigrant population “did not on its own abate the harm of serious injury or death,” noting there are staff members and vendors “circulating in-and-out” and in some housing pods there were still four people sleeping in a cell.
And Langarica expressed concern absent an injunction, improvements in the rate of contraction could be “undone by repopulation of the facility or reverting back to conditions that necessitated a [temporary restraining order] in the first place.”
That temporary restraining order was issued by Sabraw at the end of April.
Attorney Rachel Love, representing Warden C. LaRose said the facility has appropriately taken measures to curb the spread of the virus including distributing cloth masks twice this week.
She said there is no evidence the Otay Mesa facility will “revert back” or re-detain people it had released pursuant to the temporary restraining order.
Likewise, there was no evidence the facility was improperly screening staff and vendors for coronavirus, Love said.
Sabraw indicated he would issue a written ruling on the motion for a preliminary injunction next week.
Also Friday, the ACLU filed a public records request under the Freedom of Information Act seeking documents related to ICE’s response to the pandemic. The ACLU claims ICE is likely undercounting the amount of confirmed Covid-19 cases.