Judge Leans on ICE to Improve Health Conditions at Detention Facilities

(AP Photo/Gerald Herbert)

SAN FRANCISCO (CN) — A federal judge said Thursday that he would not order any more releases from two California immigration detention centers, but is considering disallowing Immigration & Customs Enforcement from admitting new detainees until he’s assured there is proper screening for coronavirus and isolation of the infected.

“There are obvious questions that any responsible ICE official should be asking and it appears that nobody is asking the questions,” U.S. District Judge Vincent Chhabria said, looking visibly irritated at a Zoom video conference hearing. 

In an errata filed Wednesday, Alexander Pham, an ICE officer in charge of overseeing the Mesa Verde facility in Bakersfield, admitted to falsely stating that new arrivals from other facilities where there were reported Covid-19 cases were being isolated for 14 days.

“At the time, I stated that all new arrivals transferred from another facility where there are any reported cases of Covid-19 infection will be placed in isolation for 14 days prior to being released into the general population. This statement was inadvertently inaccurate,” Pham wrote.

Chhabria said he suspected that ICE had “not given any thought” about how to keep coronavirus from being introduced into Mesa Verde from the outside.

“I’m troubled by the fact that this errata was filed last night and it didn’t even get into that,” he said.

Martin Schenker, counsel for a class of more than 400 immigrants seeking immediate release from Mesa Verde and Yuba County Jail in Marysville, said 170 new people that had recently arrived at Mesa Verde from other detention centers and prisons were merely asked if they had symptoms and were allowed to commingle with the general population.

“We have new people coming in every day,” he said, noting that Mesa Verde is the only center currently accepting new detainees.

“It’s not surprising to me that this would happen with a private company running the facility,” Chhabria said. “This is one of the problems you see when you entrust a private company to run your detention facilities.”

Chhabria asked the government to describe the steps ICE has taken to isolate incoming detainees, either by setting up makeshift facilities outside the center or some other means.

Assistant U.S. Attorney Shiwon Choe said “ICE has been reviewing the situation,” an answer that didn’t hold water with Chhabria, who said, “So the answer is no.”

Choe said the facility’s failings boil down to a lack of space. 

Chhabria said he would order an evidentiary hearing on the matter, and that he’s “far more concerned about Mesa Verda than Yuba County.”

He added, “I want the people who are supposed to be asking the questions about what more we can do and the people who are supposed be considering different options on how to promote safety at these facilities. That would be both ICE people and people who actually operate the facilities.”

He also told class counsel they were too focused on getting more detainees released, something that he was simply not going to do.

Since the filing of the action in April, both facilities reduced capacity by at least 50%. Chhabria said he’s granted 95 bail applications and denied 79. He said he was more concerned with whether current conditions at the facilities are constitutionally adequate for those who remain.

“Perfection is not the constitutional standard. Constant social distancing is not the constitutional standard,” Chhabria said. “What more can be a done that is not too great a burden on ICE, short of releasing people who are dangerous?”

Bill Freeman, an attorney with the ACLU, said the facilities are still dangerous and that ICE largely ignored their suggestions for making them safer, like keeping detainees 10 feet apart in sleeping areas. “Defendants have met them with crickets,” he said.  “They have said essentially said, ‘This is what we’re doing and we think it’s good enough.’”

“That’s where the problem lies with your presentation frankly,” Chhabria interjected. “Your presentation is focused on the need to get more people out of the facility rather than what else can be done, considering very few additional people are going to be released. Every day in this country we send dangerous people to prison even though prison is more dangerous to them than if they were kept in home confinement. We do that because we believe they’re too dangerous not to be confined, and there are some detainees who are too dangerous not to be confined and the constitutional expectation cannot be creation of conditions for them that would approximate what we are all experiencing right now out in society.”

Freeman said he would nonetheless press for an injunction requiring ICE to stop accepting new detainees without adequate testing protocols and quarantining “because everything that’s been done so far has been as a result of the litigation.”

Chhabria agreed on the point, saying that while the situation has changed since April, “Nothing has happened in this case that could give anybody confidence that ICE would make much of an effort on its own to maintain the status quo given how irresponsibly it has handled matters of detention thus far.”

Also on Thursday, detainees at Mesa Verde announced a hunger strike, denouncing inadequate medicare and conditions that led to the recent deaths of Choung Woong Ahn, a 74-year-old from South Korea who died of an apparent suicide at the facility, and 57-year-old Carlos Mejia, who died in ICE custody at the Otay Mesa detention center in San Diego — another private facility run by Geo Group. Mejia’s cause of death was undetermined, but he was being treated for Covid-19.

“We are also protesting the lies that ICE has told in court to federal and immigration judges about the conditions of these facilities. What they have done is not nearly enough to prevent the virus from endangering us, and we demand instant relief from these conditions,” the detainees said in a statement released through Centro Legal De La Raza. “It is still impossible to practice social distancing within this facility, and ICE and Geo Group’s practices are not protecting us from this virus. We will continue our protest until further attention is brought to these conditions, and until the governor and the attorney general of California begin an official investigation into all ICE detention facilities in California.”

Centro Legal said the number of confirmed Covid-19 cases in ICE detention stands at 1,579.

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