Judge Questions ICE Detention Center’s Covid-19 Plan

In this photo taken Sept. 10, 2019, detainees walk past a map of the world in a hallway of the U.S. Immigration and Customs Enforcement detention facility in Tacoma, Wash., in 2019. (AP Photo/Ted S. Warren)

SAN FRANCISCO (CN) — Three months after a Covid-19 outbreak infected more than half the detainees and a quarter of the staff at a privately run California detention center, a federal judge on Monday questioned why U.S. Immigration and Customs Enforcement has not enacted basic safety protocols to prevent another outbreak there.

“Why, by now, would you not have a policy for Mesa Verde that says one dorm has to remain empty at all times?” U.S. District Judge Vince Chhabria asked, referring to the need to keep one dorm at the Bakersfield facility free to house detainees who test positive for the virus.

In August, Chhabria ordered Immigration and Customs Enforcement and GEO Group, a private contractor that runs Mesa Verde, to conduct rapid Covid-19 testing for all detainees at the facility, which can house up to 400 detainees. At that time, the judge rebuked ICE and GEO Group for avoiding widespread testing, “not for lack of tests, but for fear that positive test results would require them to implement safety measures that they apparently felt were not worth the trouble.” 

Mesa Verde is now operating at 15% capacity with 49 detainees after Chhabria released more than 100 detainees at Mesa Verde and Yuba County Jail in Marysville to reduce crowding in an effort to help prevent the spread of Covid-19. ICE is asking for the court to let a temporary restraining order against it expire so it can start accepting new detainees again without court oversight.

On day one of a multiday hearing to determine if Mesa Verde can safely resume operations without court intervention, Chhabria was taken aback by ICE’s plan to start taking new arrivals there without keeping at least one dorm vacant to house Covid-19-positive detainees.

“How could they be ready to deal with another outbreak at Mesa Verde if you don’t have a policy of requiring them to keep one dorm empty at all times?” Chhabria asked.

Moises Becerra, the acting ICE deputy field officer who has overseen Mesa Verde and other nearby detention centers since July 26, responded with equivocations, such as “that’s essentially what we’re working toward.”

“I’m not really getting an answer,” the judge sighed.

Exasperated by the lack of clarity, Chhabria asked if it would “ever make sense” to place detainees in all four dorms knowing that means there would be no place to separate Covid-19-positive individuals.

“No,” Becerra finally answered, adding that ICE and GEO Group staff are still fine-tuning their pandemic response plan to potentially include a policy like that.

U.S. Justice Department lawyer Adrienne Zack, representing ICE, asked if the intake plan is set in stone.

“This intake plan is like a live document,” Becerra answered. “CDC guidance is continuing to change.”

On cross examination, attorney Timothy Cook of Cooley LLP, representing a class of immigrant detainees, asked why in late July were people knowingly housed in a dorm with a Covid-19-positive individual and why those dormmates were not immediately tested for the virus.

Becerra explained that the facility only had 25 test kits at that time, and he had to request more.

Turning to Mesa Verde’s new intake policy, Becerra would not unequivocally confirm that quarantined detainees will stay isolated for at least 14 days after a new person is added to the quarantine unit.

The intake policy says the 14-day clock will restart if new people arrive in the unit between Monday and Friday of a certain week, but it does not say what will happen if new people are added to the unit the following week.

“It sounds like you’re leaving open the possibility,” Chhabria said.

Becerra said he briefed his staff about the need to not release people from quarantine in that situation, “but it’s not in the plan.”

Earlier in the day, plaintiffs’ lawyers played a video deposition in which Alexander Pham, an ICE officer in charge of overseeing Mesa Verde, answered, “I don’t recall” to every question he was asked.

Pham said he did not recall if ICE had any involvement in developing a Covid-19 testing plan for Mesa Verde in mid-May or why a plan to start testing all Mesa Verde detainees in June never materialized.

In June, Pham admitted to falsely stating that new arrivals from facilities with positive Covid-19 cases were isolated 14 days before entering the general population at Mesa Verde. It was also revealed earlier this month that Pham falsely stated the distance between bunk beds in Mesa Verde dorms was seven feet, when the actual distance was just over five feet, making it out of compliance with social distancing guidelines for preventing the spread of Covid-19.

The multiday evidentiary hearing on Covid-19 safeguards at the Mesa Verde detention center is expected to continue through Friday.

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