SAN FRANCISCO (CN) — A federal judge on Tuesday skewered Immigration and Customs Enforcement for failing to take simple actions to ensure the safety of detainees at two California detention centers amid the Covid-19 pandemic.
“ICE has not even begun the most basic steps that would be needed to put ICE in a position to figure out how to reduce the crowding in these facilities in a way that would better protect the safety of the detainees,” U.S. District Judge Vince Chhabria said during a Zoom video hearing.
More than 400 immigrants filed a class action against the federal agency last week seeking immediate release from Mesa Verde detention center in Bakersfield and Yuba County Jail in Marysville. The immigrants say ICE has refused to take meaningful action to prevent infection, such as reducing the population so detainees can maintain the recommended 6 feet distance from others. They claim the unsafe conditions constitute deliberate indifference in violation of the Fifth Amendment. They seek a temporary restraining order requiring ICE to start releasing detainees.
In a tentative ruling issued Monday, Chhabria said he was inclined to grant the detainees some form of relief. He wrote “the plaintiffs have made a strong case that ICE is systematically violating the due process rights of this proposed class of civil detainees, because current conditions at the facilities create an unreasonable risk of harm from infection.”
During the hearing Tuesday, Chhabria questioned why, after six weeks, ICE was unable to produce a list including each immigrant detainee’s name, age, medical history and criminal background.
“I would expect ICE would have the information at the ready if it was making a meaningful attempt to assess which detainees should be released in light of the crisis,” Chhabria said. “What has ICE been doing in the last month to protect the safety of detainees if not gathering information about everyone’s health conditions and criminal record to determine who could be reasonably released during the crisis?”
U.S. Justice Department lawyer Adrienne Zack said ICE has reduced the population at both detention centers over the last six weeks. At the Mesa Verde facility, which can house up to 400 detainees, the population was lowered from 355 to 283 between March 11 and April 25.
At Yuba County Jail, which houses up to 420 inmates including 210 immigrants, the immigrant population was reduced from 168 to 144 in the same time frame. Mesa Verde is currently operating at 75% capacity while Yuba County Jail is operating at 64% capacity, according to ICE.
Zack noted that neither detention facility has any confirmed cases of Covid-19.
But only two detainees at those facilities have been tested for the virus and the number of confirmed Covid-19 cases in ICE detention centers across the country has risen to more than 400, according to San Francisco Public Defender Emilou MacLean, who represents the plaintiffs.
“The aggregate number of individuals in the detention facilities and percent capacity at the facility is not the right question,” MacLean said. “Whether there is possible social distancing in each area of the facility is the relevant question.”
Zack said the detention centers have provided masks and gloves to detainees, increased sanitation and sequestered new arrivals. But several immigrants filed declarations with the court complaining about unsanitary conditions and claiming new arrivals came in without being separated from others for 14 days.
Sensing Chhabria’s inclination to grant some relief to the detained immigrants, Zack recommended that the judge give ICE seven days to start releasing more immigrants from the two detention centers without strict court oversight.
She suggested that the judge could order ICE to reduce the jail population by a certain number and let ICE process detainees for release without direct court involvement.
“ICE would endeavor to release people in an orderly fashion as quickly as they can,” Zack said.
MacLean said her immigrant clients would not favor that approach because ICE has failed to marshal government resources to address the urgency of this crisis, despite numerous lawsuits filed over this issue across the country.
“Given the past practice, the need for judicial oversight cannot be overstated,” MacLean said.
After two hours of debate, Judge Chhabria took the arguments under submission.
The judge ordered ICE to produce a list of all detainees along with their ages, medical histories and criminal records as soon as possible.
“ICE should not be in a position of scrambling to produce this information,” Chhabria said. “ICE should already have this information at its fingertips. That’s a significant factor in assessing what type of relief to order here.”
On Wednesday, Chhabria issued a 7-page ruling granting the motion for a temporary restraining order. Chhabria said he will set up a system for considering individual bail requests based on the model created by U.S. District Judge William Young, who oversees a similar case, Savino v. Hodgson, in the District of Massachusetts.