SAN FRANCISCO (CN) — In a brief but pointed ruling Thursday, a federal judge ordered rapid Covid-19 testing of all immigrants being held by Immigration & Customs Enforcement at its Mesa Verde facility in Bakersfield, California — a process that ICE and the private contractor that runs the facility have avoided for months.
“Indeed, the documentary evidence shows that the defendants have avoided widespread testing of staff and detainees at the facility, 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,” U.S. District Judge Vincent Chhabria wrote. “This conduct by the defendants has put the detainees at serious risk of irreparable harm. The defendants have also jeopardized the safety of their own employees. And they have endangered the community at large.”
Civil rights attorneys have leaned on the judge to force ICE and GEO Group to mitigate a potential widespread outbreak by ordering more testing and isolating the infected. In a motion for a temporary restraining order filed Wednesday, they note ICE continues to introduce more people to the general population while leaving symptomatic detainees in their dorms to potentially infect others. Last week, ICE released seven people, but added 16 more.
While the agency’s policy is to test every new arrival, the tests are of the lab variety, not the rapid-result kind Chhabria ordered.
Mesa Verde warden Nathan Allen, who works for Geo Group, also acknowledged in a deposition that the company does not require its employees to be tested or remain at home if they have been in contact with someone who has Covid-19, the motion says.
A class of 400 immigrants sued in April overcrowded and unsanitary conditions at Mesa Verde and Yuba County Jail in Marysville.
A trove of emails from that case made public by the Lawyers Committee for Civil Rights of the San Francisco Bay Area reveal a troubling lack of mitigation plans and space to house positive detainees.
One email sent in early July by a facility nurse said Acting Field Office Director Alexander Pham had rejected a testing plan “due to the housing restrictions we face.” She added, “Testing all detainees will potentially cause the same housing issue we had last week but on a larger scale.”
In another email, Allen told Geo Group operations director Cheryl Nelson that Pham “would rather not have staff testing as that may impact ERO functions, i.e., an asymptomatic person testing positive would require possible dorm cohorts and detainee testing protocols.”
“They didn't implement a meaningful, universal testing regime only because they didn't want to know who was positive because that would throw a wrench into the system,” ACLU staff attorney Sean Riordan in a phone interview.
The Lawyers Committee for Civil Rights said eight detainees and 14 staff members are currently infected. Two detainees have been hospitalized.
“One of the things that's most frustrating about what've seen in recent weeks is that even as this outbreak was spreading, ICE and GEO were putting more people in Mesa Verde,” Riordan said.
Immigrants housed at Mesa Verde have also reported an atmosphere of indifference to the risk of outbreak.
One man, a 65-year-old named Yao Saeturn, suffered from body aches, fatigue and a cough for days. His requests for medical care were repeatedly ignored, according to his dorm mates. Saeturn is now at Mercy Hospital and other people in the dorm are now showing Covid-19 symptoms.
Riordan said ICE has since tested everyone in that dorm but results have been delayed by the lab, giving the virus more time to spread.
“The results are delayed and even when you get those test results, they are not liable to be accurate,” Riordan said. “Anybody who will have tested positive will have then interacted with people in that dormitory. ICE will be in the same position of essentially chasing its own tail so long as delayed-result lab tests are used. One of the things that will be useful is mandating rapid-result testing starting next week.”
To create an isolation unit, ICE and Geo Group merged Dorm C, where Saeturn was housed, with Dorm B. Riordan said the combined dorm now houses 52 detainees. "It's about twice as crowded as it was,” he said.
In June, Chhabria ordered ICE to stop admitting new detainees to Mesa Verde without first ensuring they have proper testing protocols in place and a plan to isolate those who are positive. Chhabria chided the agency and GEO Group on Thursday for ignoring that order.
"The defendants, having responded to the health crisis in such a cavalier fashion (even in the face of litigation and a string of court orders), have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or burdensome,” he wrote. “The defendants have also lost the right to be trusted that they will accomplish on their own what the plaintiffs contend requires a court order to ensure.”
Chhabria’s order Thursday requires ICE and Geo Group to stop introducing new detainees to the facility and maintain a segregated dorm for the infected. They must also file daily reports that include a roster of everyone being held at Mesa Verde and where they are housed, updates staff and detainee testing and their results, and additional information on what else is being done to manage the outbreak.
The judge stopped short of capping the population of each dorm at 35 as the detainees’ counsel requested. “Such an order would possibly force ICE to immediately release dozens of detainees — to many of whom the court has denied bail based on evidence of dangerousness — without conducting any safety evaluation,’ he wrote.
Riordan said although Chhabria is not mandating releases, he left room for counsel to renew their request to impose a hard cap on dorm numbers. “We’re going to continue to submit individual bail applications we think should be released and we hope that’s a way the system already in place can protect those still in detention at Mesa Verde,” he said.
The ACLU and Lawyers Committee for Civil Rights are representing the detainees along with private attorneys from Cooley LLP and Lakin & Wille LLP.
“Getting to this point was avoidable, but ICE and GEO’s complete disregard for the wellbeing of detainees has jeopardized not only their health but also that of the community,” ACLU staff attorney Stephanie Padilla said in a statement.
Cooley LLP partner Martin Schenker said in a statement that Chhabria’s order will provide some measure of safety at the facility. “Now that the outbreak has arrived, and in the face of ICE’s callous disregard for detainees in its custody, today’s court order provides essential safeguards necessary to protect the health and safety of detainees housed at Mesa Verde and residents of the surrounding community,” he said.
Chhabria will hold a hearing on Aug. 21, where ICE will be required to show why the order should not be made permanent. He said he is considering questioning Allen and others “to explore further the question of deliberate indifference.”
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