Judge Orders ICE to Test Immigrant Detainees for COVID-19

Order criticizes ICE’s ‘cavalier’ pandemic response in challenge by Cooley + coalition seeking to protect detained immigrants from unsafe health conditions

San Francisco – August 10, 2020 – A federal judge ordered US Immigration and Customs Enforcement to conduct weekly rapid COVID-19 testing for all immigrants detained at the Mesa Verde Detention Facility in the wake of an outbreak that hospitalized two detainees and infected at least seven others, criticizing the agency for responding to the pandemic in a “cavalier fashion” even amid litigation. The ruling – which also orders ICE to take in no new detainees at the facility, establish a dorm for COVID-positive detainees and provide daily updates to the court – comes as part of a class action lawsuit filed by Cooley and a coalition of legal organizations. Partner Martin Schenker leads the Cooley effort. 

In the ruling granting a temporary restraining order, US District Judge Vince Chhabria said evidence shows ICE and GEO Group, the private corporation that manages the detention facility, “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.” Their actions, he wrote, put not just the detainees at risk, but jeopardized employees and the community at large.

“In hindsight, perhaps the Court should not have erred on the side of deference when issuing the original temporary restraining order and preliminary injunction,” Judge Chhabria continued. “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. 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.”

The ruling follows the lawsuit’s unearthing of incriminating emails between ICE and GEO Group revealing that they rejected a plan to universally test detainees because they would be unable to adequately isolate those who tested positive.

“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 Verdeand residents of the surrounding community,” said Schenker.

Cooley and the coalition launched the class action in April to challenge fundamentally unsafe health conditions amid the COVID-19 pandemic at the Mesa Verde Detention Facility and the Yuba County Jail, which held a total of more than 400 detainees at the time. In May, Judge Chhabria granted a temporary restraining order establishing a process to consider the detainees’ release and provisionally certified a class of all detainees in the two California facilities. After issuing a series of individual release orders to reduce population levels, he granted a preliminary injunction in June ordering ICE to “at a minimum, lock in place the safety improvements achieved in recent weeks” and criticized ICE’s “obstinance” in opposing the release of detainees.

Cooley is representing the plaintiffs alongside the San Francisco Public Defender’s Office, the ACLU Foundations of Northern California and Southern California, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and law firm Lakin & Wille.

Read the full press release

Read the order

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