DOCUMENTS ARE RESTRICTED TO CASE PARTICIPANTS AND PUBLIC TERMINALS IN IMMIGRATION CASES,HABEAS,INS_LAW_CLERK
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:20-cv-00409-JLR

Dawson et al v. Asher et al Assigned to: Judge James L. Robart Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 03/16/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Karlena Dawson

represented by Aaron Korthuis NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: aaron@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David C Fathi ACLU NATIONAL PRISONER PROJECT 915 15TH ST NW 7TH FLOOR WASHINGTON, DC 20005 202-612-4326 Email: dfathi@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eunice Cho AMERICAN CIVIL LIBERTIES UNION OF WA 901 5TH AVENUE STE 630 SEATTLE, WA 98164 206-624-2184

Email: echo@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: jmidgley@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRATIONS' RIGHTS PROJECT 125 BROAD STREET FLOOR 18 NEW YORK, NY 10004 212-519-7848 Email: mtan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 39 DRUMM ST SAN FRANCISCO, CA 94111 718-483-5885

Petitioner Alfredo Espinoza-Esparza

Email: mngo@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004-2400 212-549-2620 Fax: 212-549-2654 Email: ojadwat@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz NORTHWEST IMMIGRANT RIGHTS PROJECT 1119 PACIFIC AVE STE 1400 Suite 1400 TACOMA, WA 98402 206-957-8652 Fax: 253-383-0111 Email: tim@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY

Petitioner Norma Lopez Nunez

ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner Marjoris Ramirez-Ochoa

Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address)

Petitioner Maria Gonzalez-Mendoza

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner Joe Hlupheka Bayana

Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address)

Petitioner Leonidas Plutin Hernandez

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner

David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelvin Melgar-Alas

represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tim Henry Warden-Hertz (See above for address)

Petitioner Jesus Gonzalez Herrera

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Korthuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
My Khanh Ngo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tim Henry Warden-Hertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent Nathalie Asher Director, Seattle Field Office, United States Immigration and Customs Enforcement
Respondent Matthew T Albence Deputy Director and Senior Official Performing the Duties of the Director, United States Immigration and Customs Enforcement
Respondent US Immigration and Customs Enforcement

represented by US Attorney Habeas Email: usawaw.Habeas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R. Lambert US ATTORNEY'S OFFICE (TACOMA) 1201 PACIFIC AVE STE 700 TACOMA, WA 98402 253-428-3824 Email: michelle.lambert@usdoj.gov ATTORNEY TO BE NOTICED
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R. Lambert (See above for address) ATTORNEY TO BE NOTICED
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R. Lambert (See above for address) ATTORNEY TO BE NOTICED

Respondent Steven Langford Warden, Tacoma Northwest Detention Center
Amicus Public Health Officials

represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joan K Mell III BRANCHES LAW PLLC 1019 REGENTS BLVD STE 204 FIRCREST, WA 98466 253-566-2510 Email: joan@3brancheslaw.com ATTORNEY TO BE NOTICED
represented by Darren W Johnson PAUL WEISS RIFKIND WHARTON & GARRISON (NY) 1285 AVE OF THE AMERICAS NEW YORK, NY 10019-6064 212-373-3000 Email: djohnson@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David C Kimball-Stanley PAUL WEISS RIFKIND WHARTON & GARRISON (NY) 1285 AVE OF THE AMERICAS NEW YORK, NY 10019-6064 212-373-3000 Email: dkimballstanley@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel PAUL WEISS RIFKIND WHARTON & GARRISON (NY) 1285 AVE OF THE AMERICAS NEW YORK, NY 10019-6064 212-373-3000 Email: sbuergel@paulweiss.com

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: 206-689-2270 Email: rgibbs@ghp-law.net ATTORNEY TO BE NOTICED

Date Filed 03/16/2020
03/16/2020 03/16/2020

# Docket Text
1 2241 PETITION for Writ of Habeas Corpus and Complaint for Injunctive Relief (Receipt # AWAWDC-6212001), filed by Kelvin Melgar-Alas, Jesus Gonzalez-Herrera, Joe Hlupheka Bayana, Norma Lopez Nunez, Alfredo Espinoza-Esparza, Marjoris Ramirez-Ochoa, Karlena Dawson, Leonidas Plutin Hernandez, Maria GonzalezMendoza. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Nathalie Asher, # 3 Summons Matthew T Albence, # 4 Summons Immigration and Customs Enforcement, # 5 Summons Steven Langford, # 6 Summons Civil Process Clerk)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
2 MOTION for Temporary Restraining Order , filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa. (Attachments: # 1 Proposed Order) Noting Date 3/16/2020, (Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
3 DECLARATION of Matt Adams filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)

03/16/2020 03/16/2020 03/16/2020 03/16/2020 03/16/2020
03/16/2020 03/16/2020

4 DECLARATION of Robert B. Greifinger filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Attachments: # 1 CV)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
5 DECLARATION of Jonathan Louis Golob filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Attachments: # 1 CV)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
6 DECLARATION of Marc Stern filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 2 MOTION for Temporary Restraining Order (Attachments: # 1 CV)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
7 DECLARATION of Andrew Lorenzen-Strait filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Attachments: # 1 CV)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
8 DECLARATION of Sydney Maltese filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 2 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Adams, Matt) Modified on 3/16/2020. Document(s) regenerated to AUSA. (ST) (Entered: 03/16/2020)
Judge James L. Robart and Hon. Mary Alice Theiler added. (ST) (Entered: 03/16/2020)
9 DECLARATION of Marjoris Ramirez-Ochoa filed by Plaintiffs Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus

03/16/2020 03/16/2020 03/16/2020 03/16/2020 03/16/2020 03/16/2020 03/16/2020

Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
10 DECLARATION of Karlena Dawson filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
11 DECLARATION of Maria Gonzalez Mendoza filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
12 Summons(es) Electronically Issued as to defendant(s) Matthew T Albence, Nathalie Asher, Steven Langford, United States Immigration and Customs Enforcement (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(ST) (Entered: 03/16/2020)
13 DECLARATION of Joe Hlupheka Bayana filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
14 DECLARATION of Leonidas Plutin Hernandez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
15 DECLARATION of Kelvin Melgar-Alas filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
16 DECLARATION of Jesus Gonzalez Herrera filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus

03/16/2020
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Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 03/16/2020)
17 ORDER DIRECTING SERVICE AND SETTING BRIEFING SCHEDULE by Hon. Mary Alice Theiler. Electronic service of this Order and Plaintiff(s)' 1 Petition, 2 Motion for Temporary Restraining and all supporting documents shall effect service on the United States Attorney and plaintiff(s) defendants. Defendant(s) shall file a response by Noon on Wednesday, March 18, 2020. Plaintiff(s) may file a reply only if ordered by the Court. The Clerk is directed to RE-NOTE Plaintiff(s)' 2 Motion for a Temporary Restraining Order for March 18, 2020.(ST) Modified on 3/17/2020 (KB). (Entered: 03/16/2020)
18 NOTICE of Appearance by attorney Michelle R. Lambert on behalf of Respondents Matthew T Albence, Nathalie Asher, United States Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 03/16/2020)
19 NOTICE of intent to oppose re 2 MOTION for Temporary Restraining Order ; filed by Respondents Matthew T Albence, Nathalie Asher, United States Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 03/16/2020)
20 APPLICATION OF ATTORNEY My Khanh Ngo FOR LEAVE TO APPEAR PRO HAC VICE for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Fee Paid) Receipt No. AWAWDC-6213726 (Adams, Matt) (Entered: 03/16/2020)
21 APPLICATION OF ATTORNEY Omar C. Jadwat FOR LEAVE TO APPEAR PRO HAC VICE for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Fee Paid) Receipt No. AWAWDC-6213793 (Adams, Matt) (Entered: 03/16/2020)
22 APPLICATION OF ATTORNEY Michael K. Tan FOR LEAVE TO APPEAR PRO HAC VICE for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus Gonzalez-Herrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Fee Paid) Receipt No. AWAWDC-6213799 (Adams, Matt) (Entered: 03/16/2020)

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26 Summons(es) Electronically Issued as to defendant(s) Steven Langford. (Court seal wasn't put on summons when originally issued) (ST) (Entered: 03/17/2020)
23 ORDER re 20 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney My Khanh Ngo for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/17/2020)
24 ORDER re 21 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Omar Jadwat for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/17/2020)
25 ORDER re 22 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Tan for Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Jesus GonzalezHerrera, Maria Gonzalez-Mendoza, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/17/2020)
27 NOTICE of Supplemental Authority re 2 MOTION for Temporary Restraining Order , 1 Petition for Writ of Habeas Corpus,, by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-

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03/24/2020

Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Korthuis, Aaron) (Entered: 03/17/2020)
28 RESPONSE, by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement, to 2 MOTION for Temporary Restraining Order . (Lambert, Michelle) (Entered: 03/18/2020)
29 DECLARATION of Wilcox filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 2 MOTION for Temporary Restraining Order (Lambert, Michelle) (Entered: 03/18/2020)
30 DECLARATION of Bostock filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 2 MOTION for Temporary Restraining Order (Lambert, Michelle) (Entered: 03/18/2020)
31 DECLARATION of Rivera filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 2 MOTION for Temporary Restraining Order (Lambert, Michelle) (Entered: 03/18/2020)
32 NOTICE of Appearance by attorney Joan K Mell on behalf of Respondent Steven Langford. (Mell, Joan) (Entered: 03/19/2020)
33 ORDER DENYING 2 Motion for Temporary Restraining Order signed by Judge James L. Robart. (AD) Modified on 3/19/2020. Order emailed to ICE. (ST) (Entered: 03/19/2020)
34 ORDER TO SHOW CAUSE re 28 Response to Motion by Judge James L. Robart. Show Cause Response due by 3/25/2020. (ST) (Entered: 03/20/2020)
35 NOTICE of Request for Status Conference ; filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa. (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/20/2020)
36 MOTION for Temporary Restraining Order , filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B,

03/24/2020
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# 4 Exhibit C, # 5 Exhibit D) Noting Date 3/24/2020, (Korthuis, Aaron) (Entered: 03/24/2020)
37 DECLARATION of My Khanh Ngo filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Korthuis, Aaron) (Entered: 03/24/2020)
38 Second DECLARATION of Matt Adams filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/24/2020)
39 Supplemental DECLARATION of Robert Greifinger filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) (Entered: 03/24/2020)
40 Amended DECLARATION of Andrew Lorenzen-Strait filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Korthuis, Aaron) (Entered: 03/24/2020)
41 DECLARATION of Emma Rekart filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/24/2020)
42 DECLARATION of Alejandra Gonza filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa

03/24/2020 03/24/2020 03/25/2020 03/25/2020 03/25/2020
03/27/2020 03/27/2020

re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/24/2020)
43 PRAECIPE re 39 Declaration, by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Main Document 43 replaced on 3/25/2020 per counsel's request. Original praecipe was filed in blank.) (ST) (Entered: 03/24/2020)
44 NOTICE of Supplemental Authority re 36 MOTION for Temporary Restraining Order by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Korthuis, Aaron) (Entered: 03/24/2020)
45 NOTICE of intent to oppose TRO motion re 36 MOTION for Temporary Restraining Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 03/25/2020)
46 RESPONSE TO ORDER TO SHOW CAUSE by Petitioners Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Adams, Matt) (Entered: 03/25/2020)
47 ORDER SETTING BRIEFING SCHEDULE re 36 Second MOTION for Temporary and the court's order to show cause regarding standing 34 . Respondent-Defendants ordered to file a brief by noon on Monday, March 30, 2020, that includes (1) Defendants' response to Plaintiffs' second motion for a temporary restraining order; and (2) a reply, if any, to Plaintiffs' pending response to the court's order to show cause regarding standing. The court further VACATES Defendants' prior March 31, 2020, deadline to file a reply, if any, to Plaintiffs' response to the courts order to show cause. Signed by Judge James L. Robart. (PM) (Entered: 03/25/2020)
48 NOTICE of Appearance by attorney Robert H. Gibbs on behalf of Petitioner Karlena Dawson Amicus party Public Health Officials . (Gibbs, Robert) Modified on 3/27/2020 to correct name of party (PM). (Entered: 03/27/2020)
49 APPLICATION OF ATTORNEY Susanna Buergel FOR LEAVE TO APPEAR PRO HAC VICE for Petitioner Karlena Dawson Amicus

03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020

Party Public Health Officials (Fee Paid) Receipt No. AWAWDC6236692 (Gibbs, Robert) Modified on 3/27/2020 to correct name of party (PM). (Entered: 03/27/2020)
50 APPLICATION OF ATTORNEY Darren Johnson FOR LEAVE TO APPEAR PRO HAC VICE for Petitioner Karlena Dawson Amicus Party Public Health Officials (Fee Paid) Receipt No. AWAWDC6236733 (Gibbs, Robert) Modified on 3/27/2020 to correct name of party (PM). (Entered: 03/27/2020)
51 APPLICATION OF ATTORNEY David Kimball-Stanley FOR LEAVE TO APPEAR PRO HAC VICE for Petitioner Karlena Dawson Amicus Party Public Health Officials (Fee Paid) Receipt No. AWAWDC-6236784 (Gibbs, Robert) Modified on 3/27/2020 to correct name of party (PM). (Entered: 03/27/2020)
Party Public Health Officials added per 48 Notice of Entry of Appearance. (PM) (Entered: 03/27/2020)
52 NOTICE of Appearance by attorney Robert H. Gibbs on behalf of Amicus Public Health Officials. (Gibbs, Robert) (Entered: 03/27/2020)
NOTICE of Docket Text Modification re 50 Application for Leave to Appear Pro Hac Vice, 48 Notice of Appearance, 51 Application for Leave to Appear Pro Hac Vice, 49 Application for Leave to Appear Pro Hac Vice: edited texts to correct name of party from Petitioner Karlena Dawson to Amicus Party Public Health Officials. (PM) (Entered: 03/27/2020)
53 ORDER re 49 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Susanna M Buergel for Amicus Public Health Officials, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/27/2020)
54 ORDER re 50 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Darren W Johnson for Amicus Public Health Officials, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the

03/27/2020
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event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/27/2020)
55 ORDER re 51 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney David C Kimball-Stanley for Amicus Public Health Officials, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/27/2020)
56 NOTICE of Supplemental Authority re 36 MOTION for Temporary Restraining Order by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Korthuis, Aaron) (Entered: 03/27/2020)
57 NOTICE regarding Plaintiffs' Release and Health Status re 36 MOTION for Temporary Restraining Order , 1 Petition for Writ of Habeas Corpus,, ; filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa. (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/27/2020)
58 DECLARATION of Dora B. Schriro filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/27/2020)
59 Supplemental DECLARATION of Robert Greifinger filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) (Entered: 03/27/2020)
60 MOTION for Leave to File Amici Brief, filed by Amicus Public Health Officials. Noting Date 4/17/2020, (Gibbs, Robert) (Entered: 03/28/2020)

03/30/2020
03/30/2020
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61 NOTICE of Supplemental Authority re 36 MOTION for Temporary Restraining Order by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/30/2020)
NOTICE REGARDING LACK OF PROPER SIGNATURE. The 52 Notice of Appearance was not signed or properly dated by Robert Gibbs. Signatures must be in accordance with FRCP 11 and LCR 83.2(a) and must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (PM) (Entered: 03/30/2020)
62 PRAECIPE to attach document (Appearance) for Amici re 60 MOTION for Leave to File Amici Brief by Amicus Public Health Officials (Gibbs, Robert) (Entered: 03/30/2020)
63 REPLY TO PLAINTIFFS' RESPONSE TO ORDER TO SHOW CAUSE by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Lambert, Michelle) Modified on 3/31/2020 to edit docket text (TH). (Entered: 03/30/2020)
64 RESPONSE, by Respondents Matthew T Albence, Nathalie Asher, Steven Langford, US Immigration and Customs Enforcement, to 36 MOTION for Temporary Restraining Order . (Lambert, Michelle) (Entered: 03/30/2020)
65 DECLARATION of Dr. Ada Rivera filed by Respondents Matthew T Albence, Nathalie Asher, Steven Langford, US Immigration and Customs Enforcement re 36 MOTION for Temporary Restraining Order (Lambert, Michelle) (Entered: 03/30/2020)
66 DECLARATION of Drew H. Bostock filed by Respondents Matthew T Albence, Nathalie Asher, Steven Langford, US Immigration and Customs Enforcement re 36 MOTION for Temporary Restraining Order (Lambert, Michelle) (Entered: 03/30/2020)
67 DECLARATION of Michelle R. Lambert filed by Respondents Matthew T Albence, Nathalie Asher, Steven Langford, US Immigration and Customs Enforcement re 36 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lambert, Michelle) (Entered: 03/30/2020)
68 DECLARATION of Stephen Langford filed by Respondent Steven Langford re 36 MOTION for Temporary Restraining Order (Mell, Joan) (Entered: 03/30/2020)

03/30/2020 03/30/2020
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04/01/2020 04/03/2020 04/03/2020

69 PRAECIPE re 67 Declaration, 65 Declaration, 66 Declaration, 64 Response to Motion by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Lambert, Michelle) (Entered: 03/30/2020)
70 RESPONSE Notice of Release of Plaintiff Karlena Dawson from Immigration Detention, by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement, to 36 MOTION for Temporary Restraining Order . (Attachments: # 1 Complaint A)(Lambert, Michelle) Modified on 3/31/2020 to edit docket text (TH). (Entered: 03/30/2020)
71 NOTICE of Supplemental Authority by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/31/2020)
NOTICE of Docket Text Modification re 70 Response to Motion, : Edited docket text to reflect language on the pleading (TH) (Entered: 03/31/2020)
72 NOTICE of Supplemental Authority re 36 MOTION for Temporary Restraining Order , 64 Response to Motion by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 03/31/2020)
73 ORDER directing parties to file additional evidence by this Friday, April 3, 2020, re: Petitioner-Plaintiffs' 36 Second MOTION for Temporary Restraining Order. Signed by Judge James L. Robart. (PM) (Entered: 04/01/2020)
74 Second DECLARATION of Stephen Langford filed by Respondent Steven Langford re 36 MOTION for Temporary Restraining Order (Mell, Joan) (Entered: 04/03/2020)
75 DECLARATION of Sheri Malakhova, M.D. filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 73 Order, re 36 MOTION for Temporary Restraining Order (Lambert, Michelle) Modified on 4/3/2020 to add link to 73 Order re additional evidence, per request from counsel (PM). (Entered: 04/03/2020)

04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020

76 Supplemental DECLARATION of Drew H. Bostock filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 73 Order, re 36 MOTION for Temporary Restraining Order (Lambert, Michelle) Modified on 4/3/2020 to add document link to 73 Order re additional evidence, per request from counsel. (PM). (Entered: 04/03/2020)
77 Supplemental DECLARATION of Robert Greifinger filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 73 Order, re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) Modified on 4/3/2020 to add link to 73 Order directing additional evidence (PM). (Entered: 04/03/2020)
78 Supplemental DECLARATION of Karlena Dawson filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 73 Order, re: 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) (Entered: 04/03/2020)
79 DECLARATION of Alfredo Espinoza Esparza filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 73 Order; re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) Modified on 4/3/2020 to add document link to 73 Order re additional evidence, per request from counsel. (KB). (Entered: 04/03/2020)
80 DECLARATION of Flavio Lopez Gonzalez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 73 Order 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) (Entered: 04/03/2020)
81 DECLARATION of Norma Lopez Nunez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 73 Order; re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) Modified on 4/3/2020 to add document link to 73 Order re additional evidence, per request from counsel. (KB). (Entered: 04/03/2020)

04/03/2020
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82 Supplemental DECLARATION of Leonides Plutin Hernandez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 73 Order; re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) Modified on 4/3/2020 to add document link to 73 Order re additional evidence, per request from counsel. (KB). (Entered: 04/03/2020)
83 DECLARATION of Andrew Augustine filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 73 Order; re 36 MOTION for Temporary Restraining Order (Korthuis, Aaron) Modified on 4/3/2020 to add document link to 73 Order re additional evidence, per request from counsel. (KB). (Entered: 04/03/2020)
NOTICE of Docket Text Modification re 75 Declaration, 76 Declaration : edited text to add document link to the 73 Order re additiional evidence, per request from counsel. (PM) (Entered: 04/03/2020)
NOTICE of Docket Text Modification re 79 Declaration, 81 Declaration, 82 Declaration, 83 Declaration : Edited text to add document link to the 73 Order re additional evidence, per request from counsel (dockets 77 , 78 , and 80 are already linked to Order). (KB) (Entered: 04/03/2020)
84 DECLARATION of Drew H. Bostock re 73 Order by Respondent US Immigration and Customs Enforcement (Lambert, Michelle) (Entered: 04/06/2020)
85 NOTICE of Supplemental Authority by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Attachments: # 1 Exhibit, # 2 Exhibit)(Lambert, Michelle) (Entered: 04/06/2020)
86 DECLARATION of Sheri Malakhova, M.D. re 73 Order by Respondent US Immigration and Customs Enforcement (Lambert, Michelle) (Entered: 04/06/2020)
87 NOTICE of Supplemental Authority re 36 MOTION for Temporary Restraining Order by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas

04/07/2020 04/07/2020 04/07/2020
04/08/2020 04/08/2020 04/08/2020 04/08/2020

Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit)(Korthuis, Aaron) (Entered: 04/06/2020)
88 NOTICE of Release of Plaintiff Maria Gonzalez-Mendoza From Immigration Detention ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 04/07/2020)
NOTICE REGARDING LACK OF PROPER SIGNATURE. The 66 76 Declarations of Drew H. Bostock were inproperly signed by Drew H. Bostock. Signatures must be in accordance with FRCP 11 and must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (PM) (Entered: 04/07/2020)
DISREGARD. POSTED IN ERROR. NOTICE REGARDING LACK OF PROPER SIGNATURE. The 79 Declaration of Alfredo Espinoza Esparaz was improperly signed by Tim Warden-Hertz. Mr. WardenHertz is not an attorney in this case and signatures must be in accordance with FRCP 11 and must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (PM) Modified on 4/8/2020 to indicate this entry was posted in error. Mr. Tim Warden-Hertz is an attorney in this case (PM). (Entered: 04/07/2020)
89 PRAECIPE to signature Dkt 66 by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Attachments: # 1 Exhibit Bostock Decl)(Lambert, Michelle) (Entered: 04/08/2020)
90 PRAECIPE re signature Dkt 76 by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Attachments: # 1 Exhibit Bostock Decl)(Lambert, Michelle) (Entered: 04/08/2020)
NOTICE of Docket Text Modification re Notice of Lack of Proper Signature for 79 Declaration of Alfredo Espinoza Esparza: edited text to strike as posted in error. Mr. Tim Warden-Hertz is an attorney is this case. (PM) (Entered: 04/08/2020)
91 ORDER denying Petitioners' 36 Second Motion for Temporary Restraining Order. The court ORDERS Respondents to inform Petitioners and the court as soon as practical but within at least 24 hours after learning that any individual physically present at the NWDC tests positive for or is otherwise diagnosed with COVID-19. Signed by Judge James L. Robart. (PM) (Entered: 04/08/2020)

04/09/2020
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92 ORDER FOR RETURN AND STATUS REPORT: Within 21 days of the date this Order is posted, respondents shall show cause why a writ of habeas corpus should not be granted by filing a return as provided in 28 U.S.C. § 2243. If the custody status of any petitioner changes at any point during this litigation, respondents shall file a status update with the Court as soon as possible and no later than seven days after the change. Signed by Hon. Mary Alice Theiler. (MW) (Entered: 04/09/2020)
93 NOTICE pursuant to Court's 4.8.20. Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Malakhova Decl)(Lambert, Michelle) (Entered: 04/13/2020)
94 MOTION to Dismiss and Government's Return Memorandum, filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order) Noting Date 5/22/2020, (Lambert, Michelle) (Entered: 04/30/2020)
95 DECLARATION of Michelle R. Lambert filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 11)(Lambert, Michelle) (Entered: 04/30/2020)
96 DECLARATION of Drew H. Bostock filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Lambert, Michelle) (Entered: 04/30/2020)
97 DECLARATION of Dr. Sheri Malakhova, M.D. filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Lambert, Michelle) (Entered: 04/30/2020)
98 Supplemental DECLARATION of Drew H. Bostock filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Lambert, Michelle) (Entered: 05/05/2020)
99 NOTICE of Hospitalization of Petitioner Marjoris Ochoa-Gonzalez and Removal of Petitioner Jesus Gonzalez Herrera ; filed by

Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 05/08/2020)

05/08/2020

100 NOTICE Second Notice Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Lambert, Michelle) (Entered: 05/08/2020)

05/11/2020

101 ORDER denying as moot Movants Joseph Bick, M.D., Robert L. Cohen, M.D., Joe Goldenson, M.D., Kathryn Hampton, MSt., Ranit Mishori, M.D., M.H.S., Michael Puisis, O.D., and Brie Williams, M.D.'s 60 Motion for Leave to File an Amici Brief. Signed by Judge James L. Robart.(PM) (Entered: 05/11/2020)

05/12/2020

102 DECLARATION of Joan K. Mell filed by Respondent Steven Langford re 94 MOTION to Dismiss and Government's Return Memorandum (Mell, Joan) (Entered: 05/12/2020)

05/15/2020

103 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Declaration of Drew H. Bostock)(Lambert, Michelle) (Entered: 05/15/2020)

05/18/2020

104 RESPONSE, by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa, to 94 MOTION to Dismiss and Government's Return Memorandum. Oral Argument Requested. (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

105 Second DECLARATION of Sydney Maltese filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

106 DECLARATION of Dr. Joseph J. Amon filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

107 Supplemental DECLARATION of Dora Schriro filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

108 DECLARATION of Josue Castaneda Juarez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

109 DECLARATION of Wilfredo Favela Avendano filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

110 DECLARATION of Maksym Bonarov filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

111 DECLARATION of Elsa Diaz Reyes filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

112 DECLARATION of Mark Nerheim filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

113 DECLARATION of Damilola Kehinde Adekunle filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris

Ramirez-Ochoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

114 DECLARATION of Perla Martinez Acosta filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

115 Second DECLARATION of Norma Lopez Nunez filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

116 DECLARATION of Tim Warden-Hertz filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

117 EXHIBIT A re 116 Declaration, by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

118 Second DECLARATION of Kelvin Melgar Alas filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/18/2020

119 Second DECLARATION of Joe Bayana filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 94 MOTION to Dismiss and Government's Return Memorandum (Korthuis, Aaron) (Entered: 05/18/2020)

05/22/2020 120 Third DECLARATION of Stephen Langford filed by Respondent Steven Langford re 94 MOTION to Dismiss and Government's Return

Memorandum (Attachments: # 1 Exhibit EX. A-G, # 2 Exhibit EX. HJ)(Mell, Joan) (Entered: 05/22/2020)

05/22/2020

121 REPLY, filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement, TO RESPONSE to 94 MOTION to Dismiss and Government's Return Memorandum (Lambert, Michelle) (Entered: 05/22/2020)

05/22/2020

122 DECLARATION of Michelle Lambert filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit, # 2 Exhibit)(Lambert, Michelle) (Entered: 05/22/2020)

05/22/2020

123 DECLARATION of Jack Lippard filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lambert, Michelle) (Entered: 05/22/2020)

05/22/2020

124 DECLARATION of Dr. Sheri Malakhova filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement re 94 MOTION to Dismiss and Government's Return Memorandum (Attachments: # 1 Exhibit Interim Reference Sheet, # 2 Exhibit Medical Refusal Sheet)(Lambert, Michelle) (Entered: 05/22/2020)

05/26/2020

125 NOTICE of Supplemental Authority re 104 Response to Motion, by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A)(Cho, Eunice) (Entered: 05/26/2020)

06/05/2020

126 NOTICE pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Declaration of Drew Bostock)(Lambert, Michelle) (Entered: 06/05/2020)

06/08/2020

127 NOTICE OF COVID-19 TESTING RESULTS AT NWIPC AND NEW DETAINEE TESTING PROTOCOL ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Malakhova Decl.)(Lambert, Michelle) (Entered: 06/08/2020)

06/14/2020 128 NOTICE Re the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs

Enforcement. (Attachments: # 1 Exhibit Declaration)(Lambert, Michelle) (Entered: 06/14/2020)

06/24/2020

129 **PLEASE DISREGARD - Filed in Error DECLARATION Of Stephen Langford Re COVID Testing by Respondent Steven Langford (Mell, Joan) Modified on 6/24/2020 - per counsel, filed in error. (KMP) (Entered: 06/24/2020)

06/24/2020 130 DECLARATION Of Stephen Langford Re COVID Testing by Respondent Steven Langford (Mell, Joan) (Entered: 06/24/2020)

07/01/2020

131 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Supplement Declaration of Drew Bostock - Covid)(Lambert, Michelle) (Entered: 07/01/2020)

07/10/2020

132 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Declaration)(Lambert, Michelle) (Entered: 07/10/2020)

07/15/2020

133 EIGHTH NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Decl AOIC Lippard)(Lambert, Michelle) Modified on 7/16/2020 to identify as the eighth notice (PM). (Entered: 07/15/2020)

07/16/2020

134 NINTH NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Decl AOIC Lippard)(Lambert, Michelle) Modified on 7/16/2020 to identify as the ninth notice (PM). (Entered: 07/16/2020)

07/29/2020

135 NOTICE of Release of Petitioner Majoris Ramirez-Ochoa From Immigration Detention ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A)(Lambert, Michelle) (Entered: 07/29/2020)

08/13/2020

136 TENTH NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Bostock Declaration)(Lambert, Michelle) Modified on 8/14/2020 to identify as the tenth notice (LH). (Entered: 08/13/2020)

08/17/2020 137 REPORT AND RECOMMENDATION re 94 MOTION to Dismiss and Government's Return Memorandum filed by Nathalie

Asher, US Immigration and Customs Enforcement, Matthew T Albence, 1 Petition for Writ of Habeas Corpus,, filed by Leonidas Plutin Hernandez, Norma Lopez Nunez, Alfredo Espinoza-Esparza, Karlena Dawson, Kelvin Melgar-Alas, Jesus Gonzalez Herrera, Joe Hlupheka Bayana, Maria Gonzalez-Mendoza, Marjoris Ramirez-Ochoa. Objections to R&R due by 8/31/2020, Noting Date 9/4/2020. Signed by Hon. Mary Alice Theiler. (Attachments: # 1 R&R Proposed Order, # 2 R&R Proposed Judgment)(GB) (Entered: 08/17/2020)

08/18/2020

138 NOTICE Pursuant to the Court's 91 April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Decl AOIC Lippard)(Lambert, Michelle) Modified to create linkage on 8/19/2020 (LH). (Entered: 08/18/2020)

08/20/2020

139 NOTICE Pursuantto the Court's Order April 8, 2020 ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Drew Bostock)(Lambert, Michelle) (Entered: 08/20/2020)

08/30/2020

140 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Lippard Declaration)(Lambert, Michelle) (Entered: 08/30/2020)

08/31/2020

141 OBJECTIONS by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa to 137 Report and Recommendations,,. Noting Date 9/18/2020, (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 08/31/2020)

08/31/2020

142 Third DECLARATION of Matt Adams filed by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris RamirezOchoa re 141 OBJECTIONS by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa to 137 Report and Reco (Attachments: # 1 Exhibit A)(Korthuis, Aaron) (Entered: 08/31/2020)

09/11/2020

143 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Drew Bostock)(Lambert, Michelle) (Entered: 09/11/2020)

09/14/2020

144 RESPONSE to 141 OBJECTIONS by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa to 137 Report and Reco filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement (Lambert, Michelle) (Entered: 09/14/2020)

09/25/2020

145 NOTICE of Supplemental Authority re 141 OBJECTIONS by Petitioners Joe Hlupheka Bayana, Karlena Dawson, Alfredo EspinozaEsparza, Maria Gonzalez-Mendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa to 137 Report and Reco by Petitioners Joe Hlupheka Bayana, Alfredo Espinoza-Esparza, Maria GonzalezMendoza, Jesus Gonzalez Herrera, Norma Lopez Nunez, Kelvin Melgar-Alas, Leonidas Plutin Hernandez, Marjoris Ramirez-Ochoa (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cho, Eunice) (Entered: 09/25/2020)

10/01/2020

146 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Bostock Declaration)(Lambert, Michelle) (Entered: 10/01/2020)

10/06/2020

147 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Drew Bostock)(Lambert, Michelle) (Entered: 10/06/2020)

10/22/2020

148 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Bostock Declaration)(Lambert, Michelle) (Entered: 10/22/2020)

10/23/2020

149 NOTICE of Release of Plaintiff Norma Lopez Nunez From Immigration Detention ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Order of Supervision)(Lambert, Michelle) (Entered: 10/23/2020)

10/27/2020

150 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Drew Bostock)(Lambert, Michelle) (Entered: 10/27/2020)

11/05/2020 151 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and

Customs Enforcement. (Attachments: # 1 Declaration of Drew H. Bostock)(Lambert, Michelle) (Entered: 11/05/2020)

11/10/2020

152 NOTICE Regarding April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Drew H. Bostock)(Lambert, Michelle) (Entered: 11/10/2020)

11/13/2020

153 NOTICE Pursuant to the Court's April 8, 2020 Order ; filed by Respondents Matthew T Albence, Nathalie Asher, US Immigration and Customs Enforcement. (Attachments: # 1 Supplemental Declaration of Drew H. Bostock)(Lambert, Michelle) (Entered: 11/13/2020)

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 Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 1 of 21

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

7 KARLENA DAWSON; ALFREDO
8 ESPINOZA-ESPARZA; NORMA LOPEZ NUNEZ; MARJORIS RAMIREZ-OCHOA;
9 MARIA GONZALEZ-MENDOZA; JOE HLUPHEKA BAYANA; LEONIDAS
10 PLUTIN HERNANDEZ; KELVIN MELGAR-ALAS; JESUS GONZALEZ
11 HERRERA,

12

Petitioners-Plaintiffs,

Case No. 2:20-cv-409
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR INJUNCTIVE RELIEF

13

v.

14 NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs
15 Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing
16 the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S.
17 IMMIGRATION AND CUSTOMS ENFORCEMENT; STEVEN LANGFORD,
18 Warden, Tacoma Northwest Detention Center,

19

Respondents-Defendants.

20

21

22

23

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 2 of 21

1

I. INTRODUCTION

2

The novel coronavirus that causes COVID-19 has led to a global pandemic. In only a few

3 months, 153,517 people worldwide have received confirmed diagnoses of COVID-19, and over

4 5,735 of those people have died. There is no vaccine against COVID-19, and there is no known

5 cure. No one is immune. COVID-19 is most likely to cause serious illness and elevated risk of

6 death for older adults and those with certain medical conditions or underlying disease. The

7 COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss

8 of respiratory capacity, and can damage tissues in other vital organs including the heart and liver.

9 Patients with serious cases of COVID-19 require advanced medical support, including positive

10 pressure ventilation and extracorporeal mechanical oxygenation in intensive care. Patients who

11 do not die from serious cases of COVID-19 may face prolonged recovery periods, including

12 extensive rehabilitation from neurologic damage and loss of respiratory capacity. The only

13 known effective measures to reduce the risk for vulnerable people of serious illness or

14 death caused by COVID-19 are social distancing and improved hygiene, which have led to

15 unprecedented public health measures around the world. According to preliminary data from

16 China, 20 percent of people in high risk categories who contracted COVID-19 there died.

17

People in congregate environments, which are places where people live, eat, and sleep in

18 close proximity, face increased danger of contracting COVID-19, as already evidenced by

19 the rapid spread of the virus in cruise ships and nursing homes. People who are confined

20 in prisons, jails, and detention centers will find it virtually impossible to engage in the

21 necessary social distancing and hygiene required to mitigate the risk of transmission, even with

22 the best-laid plans. For this reason, correctional public health experts have recommended the

23 release from custody of people most vulnerable to COVID-19. Release protects the people with

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 1
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 3 of 21

1 the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for

2 greater risk mitigation for all people held or working in a prison, jail, or detention center. Release

3 of the most vulnerable people from custody also reduces the burden on the region’s

4 limited health care infrastructure, as it lessens the likelihood that an overwhelming number of

5 people will become seriously ill from COVID-19 at the same time.

6

Petitioners-Plaintiffs (hereinafter Plaintiffs) are people who are particularly vulnerable to

7 serious illness or death if infected by COVID-19 and who are held in civil detention

8 by Immigration and Customs Enforcement (ICE) at the Tacoma Northwest Detention

9 Center (NWDC) in Tacoma, Washington as they await the adjudication of their immigration

10 cases. Plaintiffs are older adults or have medical conditions that lead to high risk of serious

11 COVID-19 infection, including lung disease, heart disease, diabetes, epilepsy, kidney disease,

12 autoimmune disorders, asthma, and hypertension. The NWDC is located in the Seattle,

13 Washington metropolitan area, the epicenter of the largest COVID-19 outbreak in the United

14 States, and one of the largest known outbreaks in the world. As detailed below, the danger posed

15 by Plaintiffs’ detention during the current outbreak of COVID-19 is “so grave that it violates

16 contemporary standards of decency to expose anyone unwillingly to such a risk” and violates

17 their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36

18 (1993).

19

II. PARTIES

20

1. Petitioner-Plaintiff Karlena Dawson is a citizen of Jamaica who has been detained

21 by ICE at the NWDC since February of 2019. She suffers from cholangitis, an autoimmune liver

22 disease. As a consequence, she is at high risk for severe illness or death if she contracts COVID-

23 19.

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 2
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 4 of 21

1

2. Petitioner-Plaintiff Alfredo Espinoza Garza is citizen of Mexico who is detained

2 by ICE at NWDC. While detained at the facility, he has suffered acute chest pain that required

3 hospitalization to receive treatment for a heart attack. As a consequence of his health condition,

4 he is at a high risk for severe illness or death if he contracts COVID-19.

5

3. Petitioner-Plaintiff Norma Lopez Nunez is a citizen of Mexico who is detained by

6 ICE at the NWDC. She is 65 years old and suffers from hypertension and heart disease, in

7 addition to other ailments. As a consequence, she is at high risk for severe illness or death if she

8 contracts COVID-19.

9

4. Petitioner-Plaintiff Marjoris Ramirez Ochoa is a citizen of Cuba who is detained

10 by ICE at the NWDC. She suffers from chronic high blood pressure, kidney disease, and

11 epilepsy, among other conditions. As a consequence, she is at high risk for severe illness or death

12 if she contracts COVID-19.

13

5. Petitioner-Plaintiff Maria Gonzalez Mendoza is a citizen of Mexico who is

14 detained by ICE at the NWDC. She suffers from diabetes, high blood pressure, and asthma. As a

15 consequence, she is at high risk for severe illness or death if she contracts COVID-19.

16

6. Petitioner-Plaintiff Joe Hlupheka Bayana is a citizen of Zimbabwe who has been

17 detained by ICE at the NWDC since October of 2018. He is 57 years old and suffers from

18 diabetes and seizures. As a consequence, he is at high risk for severe illness or death if he

19 contracts COVID-19.

20

7. Petitioner-Plaintiff Leonidas Plutin Hernandez is a citizen of Cuba who is

21 detained by ICE at the NWDC. He is 59 years old and suffers from high blood pressure. As a

22 consequence of his health condition, he is at a high risk for severe illness or death if he contracts

23 COVID-19.

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 3
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 5 of 21

1

8. Petitioner-Plaintiff Kelvin Melgar Alas is a citizen of El Salvador who has been

2 detained by ICE at the NWDC since July of 2018. He has been confined to a wheelchair since

3 1995, requires a colonoscopy bag and catheter, and has been transferred to the hospital multiple

4 times for pneumonia while detained at the NWDC. As a consequence of his fragile health

5 condition, he is at high risk for severe illness or death if he contracts COVID-19.

6

9. Petitioner-Plaintiff Jesus Gonzalez Herrera is a citizen of Mexico who has been

7 detained by ICE since July of 2019 and is currently detained at the NWDC. He suffers from

8 diabetes and high blood pressure. As a consequence of his health condition, he is at a high risk

9 for severe illness or death if he contracts COVID-19.

10

10. Respondent-Defendant Nathalie Asher (Asher) is the Field Officer Director for

11 the Seattle Field Office of ICE. The Seattle Field Office is responsible for carrying out ICE’s

12 immigration detention operations at the NWDC. Defendant Asher is a legal custodian of

13 Plaintiffs. She is sued in her official capacity.

14

11. Respondent-Defendant Matthew T. Albence (Albence) is the Deputy Director and

15 Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible

16 for ICE’s policies, practices, and procedures, including those relating to the detention of

17 immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official

18 capacity.

19

12. Respondent-Defendant ICE is a federal law enforcement agency within the

20 Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of

21 immigration laws, including the detention and removal of immigrants. Enforcement and

22 Removal Operations (ERO), a division of ICE, manages and oversees the immigration detention

23 system. Defendant ICE is a legal custodian of Plaintiffs.

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 4
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 6 of 21

1

13. Respondent-Defendant Stephen Langford is employed by the private corporation

2 the GEO Group, Inc. as Warden of the Tacoma Northwest Detention Center, where Plaintiffs are

3 detained. Defendant Langford is a legal custodian of Plaintiffs. He is sued in his official

4 capacity.

5

III. JURISDICTION AND VENUE

6

14. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331

7 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas

8 jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension

9 Clause).

10

15. Venue lies in the United States District Court for the Western District of

11 Washington, the judicial district in which Plaintiffs are currently in custody. Venue is proper in

12 the Western District of Washington under 28 U.S.C. § 1391, as venue is proper in any district in

13 which a defendant resides.

14

IV. FACTS

15

A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to

Persons Over Age 50 and Those with Certain Medical Conditions. 16

16. COVID-19 is a coronavirus that has reached pandemic status. As of March 16, 17

2020, at least 153,517 people worldwide have confirmed diagnoses, including over 3,400 people 18

in the United States. Over 5,735 people have died as a result of COVID-19 worldwide, including 19

at least 66 in the United States. The transmission of COVID-19 is expected to grow 20

exponentially. 21

17. People over the age of fifty and those with certain medical conditions face greater 22

chances of serious illness or death from COVID-19. Certain underlying medical conditions 23

increase the risk of serious COVID-19 disease for people of any age, including lung disease, 24

PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 5
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 7 of 21

1 heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes,

2 epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or

3 autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic

4 disorders, stroke, developmental delay, and pregnancy.

5

18. In many people, COVID-19 causes fever, cough, and shortness of breath. But for

6 people over the age of fifty or with medical conditions that increase the risk of serious COVID-

7 19 infection, shortness of breath can be severe.

8

19. The COVID-19 virus can severely damage lung tissue, which requires an

9 extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory

10 capacity. COVID-19 may also target the heart muscle, causing a medical condition called

11 myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and

12 electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or

13 abnormal heart rhythms in the short term, and long-term heart failure that limits exercise

14 tolerance and the ability to work.

15

20. Emerging evidence suggests that COVID-19 can also trigger an over-response of

16 the immune system, further damaging tissues in a cytokine release syndrome that can result in

17 widespread damage to other organs, including permanent injury to the kidneys and neurologic

18 injury.

19

21. These complications can manifest at an alarming pace. Patients can show the first

20 symptoms of infection in as little as two days after exposure, and their condition can seriously

21 deteriorate in as little as five days or sooner.

22

22. Even some younger and healthier people who contract COVID-19 may

23 require supportive care, which includes supplemental oxygen, positive pressure ventilation, and

24
PET. FOR WRIT OF HABEAS CORPUS & COMPL. FOR INJUNCTIVE RELIEF - 6
Case No. 2:20-cv-409

American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
Tel: 202-393-4930 Fax: 202-393-4931

Case 2:20-cv-00409 Document 1 Filed 03/16/20 Page 8 of 21

1 in extreme cases, extracorporeal mechanical oxygenation. Most people in higher risk categories

2 who develop serious disease, however, will need advanced support. This level of supportive care

3 requires highly specialized equipment that is in limited supply, and an entire team of care

4 providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care

5 physicians. This level of support can quickly exceed local health care resources.

6

23. The need for care, including intensive care, and the likelihood of death, is much

7 higher from COVID-19 infection than from influenza. According to recent estimates, the fatality

8 rate of people infected with COVID-19 is about ten times higher than a severe seasonal

9 influenza, even in advanced countries with highly effective health care systems. For people in the

10 highest risk populations, the fatality rate of COVID-19 infection is about 15 percent. Preliminary

11 data from China showed that 20 percent of people in high-risk categories who have contracted

12 COVID-19 there have died.

13

24. Patients in high-risk categories who do not die from COVID-19 should expect a

14 prolonged recovery, including the need for extensive rehabilitation for profound reconditioning,

15 loss of digits, neurologic damage, and the loss of respiratory capacity.

16

25. There is no vaccine against COVID-19, nor is there any no known medication to

17 prevent or treat infection from COVID-19. The only known effective measures to reduce the risk

18 for vulnerable people from injury or death from COVID-19 are to prevent them from being

19 infected in the first place. Social distancing, or remaining physically separated from known or

20 potentially infected individuals, and vigilant hygiene, including washing hands with soap and

21 water, are the only known effective measures for protecting vulnerable people from COVID-19.

22

26. Nationally, projections by the Centers for Disease Control and Prevention

23 (CDC) indicate that over 200 million people in the United States could be infected with COVID-

24
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1 19 over the course of the epidemic without effective public health intervention, with as many as

2 1.5 million deaths in the most severe projections.

3

B. People Detained at the Northwest Detention Center Face an Elevated Risk of

COVID-19 Transmission. 4

27. The NWDC is located in the Seattle, Washington metropolitan area, the epicenter 5

of the largest COVID-19 outbreak in the United States at this time, and one of the largest known 6

outbreaks in the world. 7

28. As of March 15, 2020, there were 769 confirmed cases of COVID-19 and 42 8

deaths from COVID-19 in Washington State. 9

29. The COVID-19 outbreak in Washington State has resulted in unprecedented 10

health measures to facilitate and enforce social distancing. Immigration courts and the ICE field 11

office in Seattle have already closed in the past month due to staff exposure to COVID-19. It is 12

highly likely, and perhaps inevitable, that COVID-19 will reach the NWDC. 13

30. People who live in institutional settings such as immigration detention centers and 14

who are over the age of 50 or are any age with medical conditions that put them at high risk of 15

illness if infected by COVID-19 are at grave risk of severe illness and death. 16

31. Immigration detention facilities are “congregate environments,” or places where 17

people live and sleep in close proximity. Infectious diseases that are communicated by air or 18

touch are more likely to spread in these environments. This presents an increased danger for the 19

spread of COVID-19 if and when it is introduced into a facility. 20

32. Enclosed group environments, like cruise ships or nursing homes, have become 21

the sites for the most severe outbreaks of COVID-19. The highest known person-to-person 22

transmission rate for COVID-19 took place in a skilled nursing home facility in Kirkland, 23

Washington, and on afflicted cruise ships in Japan and off the coast of California. 24

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1

33. The conditions of immigration detention facilities pose a heightened public health

2 risk for the spread of COVID-19 that is even greater than in non-carceral

3 institutions. Immigration detention facilities have even greater risk of infectious spread because

4 of crowding, the proportion of vulnerable people detained, and often scant medical care

5 resources. People live in close quarters and as a result, cannot achieve the “social distancing”

6 needed to effectively prevent the spread of COVID-19. They may be unable to maintain the

7 recommended distance of 6 feet from others and may share or touch objects used by others.

8 Toilets, sinks, and showers are shared, without disinfection between each use. Food preparation

9 and service is communal with little opportunity for surface disinfection. Staff arrive and leave on

10 a shift basis, and there is limited ability to adequately screen staff for new, asymptomatic

11 infection.

12

34. Many immigration detention facilities lack adequate medical infrastructure to

13 address the spread of infectious disease and treatment of people most vulnerable to illness in

14 detention. During the H1N1 influenza epidemic in 2009, jails and prisons were sites of severe

15 outbreaks. It is reasonable to expect COVID-19 will also readily spread in detention centers,

16 especially when people cannot engage in proper hygiene and isolate themselves from infected

17 residents or staff.

18

C. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention.

19

35. Because risk mitigation is the only known strategy that can protect vulnerable

20 groups from COVID-19, public health experts with experience in immigration detention and

21 correctional settings have recommended the release of vulnerable detainees from custody.

22

36. Dr. Marc Stern, a correctional health expert, has as concluded that “[f]or detainees

23 who are at high risk of serious illness or death should they contract the COVID-19 virus, release

24
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1 from detention is a critically important way to meaningfully mitigate that risk.” For that reason,

2 Dr. Stern has recommended the “release of eligible individuals from detention, with priority

3 given to the elderly and those with underlying medical conditions most vulnerable to serious

4 illness or death if infected with COVID-19.”

5

37. Dr. Robert Greifinger, a correctional health expert, has concluded that “even with

6 the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-

7 risk individuals is a key part of a risk mitigation strategy. Accordingly, “[i]n [his] opinion, the

8 public health recommendation is to release high-risk people from detention, given the heightened

9 risks to their health and safety, especially given the lack of a viable vaccine for prevention or

10 effective treatment at this stage.”

11

38. In the event that a scenario where vulnerable detainees have already been exposed

12 to COVID-19, these experts recommend testing where possible, and the release of detainees to a

13 quarantine setting outside of detention in coordination with local health authorities.

14

D. Plaintiffs Are Particularly Vulnerable to Serious Illness or Death If Infected by

COVID-19 and Should Be Released from Custody. 15

39. Plaintiffs in this case are people who are particularly vulnerable to serious illness 16

or death if infected by COVID-19 who are currently detained at the NWDC as they await the 17

adjudication of their civil immigration cases. 18

40. Karlena Dawson. Ms. Dawson is a 48-year-old citizen of Jamaica. Ms. Dawson 19

has been detained by ICE at the NWDC since February of 2019. Ms. Dawson was previously 20

deported from the United States but returned after learning that her children, who remained in the 21

United States, had suffered physical and sexual abuse at the hands of their foster father. She was 22

ordered removed, but has since filed a petition for review challenging the removal order. She has 23

also filed a U visa application based on the abuse suffered by her children, which remains 24

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1 pending before U.S. Citizenship and Immigration Services (USCIS). If that application is

2 approved, she will be granted permission to remain in the United States with lawful status.

3

41. Ms. Dawson has been diagnosed with cholangitis, a progressive liver disease. She

4 has been informed that she has a life expectancy of 10-12 years. She must take ursodiol twice a

5 day to suppress enzymes because of her auto-immune disease. She also has diabetes, which

6 requires her to take insulin and metformin.

7

42. Ms. Dawson is critically vulnerable to COVID-19 because of her autoimmune

8 disease and diabetes.

9

43. Alfredo Espinoza Esparza. Mr. Espinoza is a 41-year-old citizen of Mexico who

10 was living in Spokane, Washington, with his family, when he was arrested in October of 2019,

11 by Border Patrol at the restaurant where he works. He has been detained by ICE at the NWDC

12 since that time. He is applying for cancellation of removal and adjustment of status to lawful

13 permanent residence before the immigration court.

14

44. On or about January 16, 2020, while detained at the NWDC, Mr. Espinoza

15 suffered acute chest pain that required hospitalization to receive treatment for a heart attack. He

16 was subsequently returned to the NWDC, where he is currently detained. He also suffers from a

17 rectal hemorrhage which requires medication. Mr. Espinoza also suffers from joint and nerve

18 damage in his elbow, from when he was handcuffed by Border Patrol agents. This medical

19 workers at the NWDC have diagnosed the elbow pain as a result of a lesion to his ulnar nerve

20 and multiple small osteochondral joint bodies. This has caused persistent numbness in his

21 forearm and finger, and consistent aches and pain in his arm, wrist, and hand.

22

45. Mr. Espinoza is critically vulnerable to COVID-19 because of his significant

23 health problems.

24
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1

46. Norma Lopez Nunez. Ms. Lopez is a 65-year-old citizen of Mexico. She is

2 detained by ICE at the NWDC. She was issued a removal order that she is now challenging on a

3 petition for review before the Ninth Circuit Court of Appeals.

4

47. Ms. Lopez suffers from hypertension and heart disease, in addition to major

5 depression and other mental impairments.

6

48. Ms. Lopez is critically vulnerable to COVID-19 because of her age and her

7 significant health problems.

8

49. Marjoris Ramirez Ochoa. Ms. Ramirez is a 43-year-old citizen of Cuba. She is

9 detained by ICE at the NWDC. She last entered the United States in 2002 and is appealing a

10 decision by the Immigration Judge denying her applications for withholding of removal and

11 protection under the Convention Against Torture.

12

50. Ms. Ramirez suffers from chronic high blood pressure, kidney disease and

13 epilepsy. While detained she has suffered five seizures, but has not been referred to medical care

14 outside of the detention center. She also suffers from respiratory problems and has contracted

15 pneumonia in the past. Finally, she suffers from depression, gastritis, and an ovarian cyst, among

16 other conditions.

17

51. Ms. Ramirez is critically vulnerable to COVID-19 because of her significant

18 health problems.

19

52. Maria Gonzalez Mendoza. Ms. Gonzalez is a 49-year-old citizen of Mexico. She

20 is detained by ICE at the NWDC. She has lived in the United States since 1986 and has three

21 children, all of whom are U.S. citizens. She is applying for cancellation of removal and

22 adjustment of status to lawful permanent residence before the immigration court.

23

24
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1

53. Ms. Gonzalez suffers from high blood pressure, diabetes, and asthma. She

2 receives medication for her asthma, in addition to depression and mental illness.

3

54. Ms. Gonzalez is critically vulnerable to COVID-19 because of her significant

4 health problems.

5

55. Joe Hlupheka Bayana. Mr. Bayana is a 57-year-old citizen of Zimbabwe. He has

6 been detained by ICE at the NWDC since October of 2018. He has filed a petition for review to

7 the Ninth Circuit Court of Appeals challenging the Board of Immigration Appeals’ denial of his

8 motion to reopen immigration proceedings.

9

56. Mr. Bayana suffers from type II diabetes. He takes insulin three times a day to

10 treat his condition. He receives medication to treat seizures, as well as depression.

11

57. Mr. Bayana is critically vulnerable to COVID-19 because of his age and

12 significant health problems.

13

58. Leonidas Plutin Hernandez. Mr. Plutin is a 59-year-old citizen of Cuba. He has

14 been detained by ICE since August of 2019. He is currently detained at the NWDC.

15

59. Mr. Plutin suffers from chronic high blood pressure, for which he receives daily

16 medication.

17

60. Mr. Plutin is critically vulnerable to COVID-19 because of his age and chronic

18 high blood pressure.

19

61. Kelvin Melgar Alas. Mr. Melgar is 41-year-old citizen of El Salvador. He has

20 been detained by ICE since July of 2018. He was issued an order of removal that he is now

21 challenging on a petition for review before the Ninth Circuit Court of Appeals, which issued a

22 stay of removal.

23

24
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1

62. Mr. Melgar has been confined to a wheelchair since 1995, when he was shot in

2 the spinal cord. In addition, he requires a colonoscopy bag and a catheter. While detained at the

3 NWDC, he has been transferred for hospitalization on five separate occasions, including multiple

4 times for suspected pneumonia.

5

63. Mr. Melgar is critically vulnerable to COVID-19 because of his significant health

6 problems.

7

64. Jesus Gonzalez Herrera. Mr. Gonzalez is a 46-year-old citizen of Mexico who

8 has been detained by ICE since July of 2019. He has been living in the United States since 2003

9 and has six children, all of whom are U.S. citizens. He is applying for cancellation of removal

10 and adjustment of status to lawful permanent residence before the immigration court.

11

65. Mr. Gonzalez suffers from diabetes and high blood pressure, which require him to

12 take three different types of medication daily.

13

66. Mr. Gonzalez is critically vulnerable to COVID19 because of his significant

14 health problems.

15

V. LEGAL FRAMEWORK

16

A. Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody.

17

67. Whenever the government detains or incarcerates someone, it has an affirmative

18 duty to provide conditions of reasonable health and safety. As the Supreme Court has explained,

19 “when the State takes a person into its custody and holds him there against his will, the

20 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

21 and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189,

22 199-200 (1989). As a result, the government must provide those in its custody with “food,

23 clothing, shelter, medical care, and reasonable safety.” Id. at 200.

24
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1

68. Conditions that pose an unreasonable risk of future harm violate the Eighth

2 Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet

3 come to pass. The Eighth Amendment requires that “inmates be furnished with the basic human

4 needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. at 33 (quoting

5 DeShaney, 489 U.S. at 200). Accordingly, “[i]t would be odd to deny an injunction to inmates

6 who plainly proved an unsafe, life-threatening condition in their prison on the ground that

7 nothing yet had happened to them.” Id.

8

69. The Supreme Court has explicitly recognized that the risk of contracting a

9 communicable disease may constitute such an “unsafe, life-threatening condition” that threatens

10 “reasonably safety.” Id.

11

70. These principles also apply in the context of immigration detention. Immigrant

12 detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil

13 immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

14

71. Because detained immigrants are civil detainees, their constitutional protections

15 while in custody are derived from the Fifth Amendment, which provides protections even greater

16 than the Eighth Amendment. The Eighth Amendment, which applies to persons convicted of

17 criminal offenses, allows punishment as long as it is not cruel and unusual. But the Fifth

18 Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S.

19 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”).

20

72. The Ninth Circuit has applied this principle to make clear that that civil detainees,

21 like Plaintiffs here, are entitled to conditions of confinement that are superior to those of

22 convicted prisoners and to those of criminal pretrial detainees. Jones v. Blanas, 393 F.3d 918,

23 933-34 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005); see also King v. Cnty. of Los Angeles,

24
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1 885 F.3d 548, 557 (9th Cir. 2018) (finding presumption of punitive, and thus unconstitutional,

2 treatment where conditions of confinement for civil detainees are similar to those faced by pre-

3 trial criminal detainees).

4

73. Moreover, because civil detention is governed by the Fifth Amendment rather

5 than the Eighth Amendment, the “deliberate indifference” standard required to establish a

6 constitutional violation in the latter context does not apply to civil detainees like Plaintiffs.

7 Jones, 393 F.3d at 934. Instead, a condition of confinement for a civil immigration detainee

8 violates the Constitution “if it imposes some harm to the detainee that significantly exceeds or is

9 independent of the inherent discomforts of confinement and is not reasonably related to a

10 legitimate governmental objective or is excessive in relation to the legitimate governmental

11 objective.” Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8188563, at

12 *5 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017).

13

B. ICE Has the Authority to Release Detained People in Its Custody.

14

74. It is well within ICE’s authority to comply with these constitutional requirements

15 by releasing people who are vulnerable to severe illness or death if they contract COVID-19. For

16 example, the regulations governing ICE’s release authority state that serious medical conditions

17 are a reason to parole an individual, as “continued detention would not be appropriate” in such

18 cases. 8 C.F.R. § 212.5(b)(1).

19

75. ICE not only has the authority to exercise discretion to release individuals from

20 custody, but has routinely exercised this discretion to release particularly vulnerable detainees

21 like Plaintiffs.

22

76. High level ICE officials corroborate this fact. As former Deputy Assistant

23 Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-

24
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1 Strait explains, “ICE has exercised and still exercises discretion for purposes of releasing

2 individuals with serious medical conditions from detention.” In fact, “ICE exercises

3 humanitarian parole authority all the time for serious medical reasons.”

4

77. This exercise of discretion comes from a long line of agency directives explicitly

5 instructing officers to exercise favorable discretion in cases involving severe medical concerns

6 and other humanitarian equities militating against detention.

7

78. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s

8 detention.

9

C. This Court Has Authority to Order Plaintiffs’ Release to Vindicate Their Fifth

Amendment Rights, and Such Relief Is Appropriate Here.

10 79. While the circumstances of this case are novel and emerging, the Court’s

11 authority to order Plaintiffs’ release to ensure their constitutional rights are protected is not.

12 “Federal courts possess whatever powers are necessary to remedy constitutional violations

13 because they are charged with protecting these rights.” Stone v. City & Cnty. of San Francisco,

14 968 F.2d 850, 861 (9th Cir. 1992). As a result, “[w]hen necessary to ensure compliance with a

15 constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown

16 v. Plata, 563 U.S. 493, 511 (2011).

17 80. Courts have regularly exercised this authority to remedy to remedy constitutional

18 violations caused by overcrowding. Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert.

19 denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing

20 release of low-bond pretrial detainees as necessary to reach a population cap).

21 81. The same principle applies here. As the constitutional principles and public health

22 experts make clear, releasing Plaintiffs is the only viable remedy to ensure their safety from the

23 threat to their health that COVID-19 poses. Plaintiffs are older adults and people with medical

24

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1 conditions who are at particularly grave risk of severe illness or death if they contract COVID-

2 19.

3

82. In the face of this great threat, social distancing and hygiene measures are

4 Plaintiffs’ only defense against COVID-19. Those protective measures are exceedingly difficult,

5 if not impossible, in the environment of an immigration detention center, where Plaintiffs share

6 toilets, sinks, and showers, eat in communal spaces, and are in close contact with the many other

7 detainees and officers around them. These conditions pose even greater risk of infectious spread,

8 and as a result, Plaintiffs face unreasonable harm from continued detention.

9

VI. CLAIM FOR RELIEF

10 Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment;
Freedom from Cruel Treatment and Conditions of Confinement) 11
83. The Fifth Amendment of the Constitution guarantees that civil detainees, 12
including all immigrant detainees, may not be subjected to punishment. The federal government 13
violates this substantive due process right when it subjects civil detainees to cruel treatment and 14
conditions of confinement that amount to punishment or does not ensure those detainees’ safety 15
and health. 16
84. Defendants’ conditions of confinement subject Plaintiffs to heightened risk of 17
contracting COVID-19, for which there is no vaccine, known treatment, or cure. Because of 18
Plaintiffs’ particular vulnerabilities, they risk serious illness and death if infected with COVID19
19. Defendants are subjecting Plaintiffs to a substantial risk of serious harm, in violation of 20
Plaintiffs’ rights under the Due Process Clause. 21
85. As public health experts in correctional medical care and infectious disease agree, 22
people vulnerable to COVID-19 who are held in immigration detention “are at grave risk of 23

24
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1 severe illness and death.” Accordingly, Defendants are subjecting Plaintiffs to detention

2 conditions that amount to punishment and that fail to ensure their safety and health.

3

86. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Due

4 Process Clause.

5

VII. PRAYER FOR RELIEF

6

WHEREFORE Plaintiffs request that the Court grant the following relief:

7

a. Issue a Writ of Habeas Corpus and order Plaintiffs’ immediate release, with

8

appropriate precautionary public health measures, on the ground that their

9

continued detention violates the Due Process Clause;

10

b. In the alternative, issue injunctive relief ordering Defendants to immediately

11

release Plaintiffs, with appropriate precautionary public health measures, on the

12

grounds that their continued detention violates the Due Process Clause;

13

c. Issue a declaration that Defendants’ continued detention in civil immigration

14

custody of individuals at increased risk for severe illness, including all people

15

over fifty years old and persons of any age with underlying medical conditions

16

that may increase the risk of serious COVID-19, violates the Due Process Clause;

17

d. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the

18

Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C.

19

§ 2412, and on any other basis justified under law; and

20

e. Grant any other and further relief that this Court may deem fit and proper.

21

22

23

24
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1

2 RESPECTFULLY SUBMITTED 16th of March, 2020.

3

s/ David C. Fathi David C. Fathi, WSBA No. 24893**

4

dfathi@aclu.org

s/ Matt Adams Matt Adams, WSBA No. 28287 matt@nwirp.org

5

s/ Eunice H. Cho Eunice H. Cho, WSBA No. 53711**

6

echo@aclu.org

American Civil Liberties Union Foundation,

7

National Prison Project

915 15th Street N.W., 7th Floor

8

Washington, DC 20005

Tel: (202) 548-6616 9

Omar C. Jadwat*

10

ojadwat@aclu.org

Michael Tan*

11

mtan@aclu.org

American Civil Liberties Union Foundation,

12

Immigrants’ Rights Project

125 Broad Street, 18th Floor

13

New York, NY 10004

Tel: (212) 549-2600 14

My Khanh Ngo*

15

mngo@aclu.org

American Civil Liberties Union Foundation,

16

Immigrants’ Rights Project

39 Drumm Street

17

San Francisco, CA 94111

Tel: (415) 343-0774 18

19

20

s/ Aaron Korthuis Aaron Korthuis WSBA No. 53974 aaron@nwirp.org
Northwest Immigrant Rights Project 615 Second Ave., Suite 400 Seattle, WA 98104 Tel: (206) 957-8611
s/ Tim Henry Warden-Hertz Tim Henry Warden-Hertz, WSBA No. 53042 tim@nwirp.org
Northwest Immigrant Rights Project 1119 Pacific Ave., Suite 1400 Tacoma, WA 98402 Tel: (206) 957-8652
s/ Enoka Herat Enoka Herat, WSBA No. 43347 eherat@aclu-wa.org
s/ John Midgley John Midgley, WSBA No. 6511 jmidgley@aclu-wa.org
American Civil Liberties Union Foundation of Washington P.O. Box 2728 Seattle, WA 98111 Tel: (206) 624-2184

21

Attorneys for Plaintiffs

22 *Pro hac vice application forthcoming

23

**Not admitted in DC; practice limited to federal courts

24
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 Case 2:20-cv-00409 Document 2 Filed 03/16/20 Page 1 of 24

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

KARLENA DAWSON; ALFREDO

9 ESPINOZA ESPARZA; NORMA LOPEZ-

Case No. 2:20-cv-409

NUNEZ; MARJORIS RAMIREZ

10 OCHOA; MARIA GONZALEZ MENDOZA; JOE HLUPHEKA
11 BAYANA; LEONIDAS PLUTIN

MOTION FOR TEMPORARY RESTRAINING ORDER

HERNANDEZ; KELVIN MELGAR

12 ALAS; JESUS GONZALEZ HERRERA,

NOTE ON MOTION CALENDAR:

MARCH 16, 2020

13

Petitioners-Plaintiffs,

14

v.

15 NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs
16 Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official
17 Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement;
18 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; STEVEN LANGFORD,
19 Warden, Tacoma Northwest Detention Center,

20

Respondents-Defendants.

21 INTRODUCTION
22 The novel coronavirus that causes COVID-19 has led to a global pandemic. In only a few
23 months, 153,517 people worldwide have received confirmed diagnoses of COVID-19, and over
24

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1 5,735 of those people have died.1 There is no vaccine against COVID-19 and there is no known

2 cure. No one is immune. COVID-19 is most likely to cause serious illness and elevated risk of

3 death for older adults and those with certain medical conditions or underlying disease. The

4 COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss

5 of respiratory capacity, and can damage tissues in other vital organs including the heart and liver.

6 Patients with serious cases of COVID-19 require advanced medical support, including positive

7 pressure ventilation and extracorporeal mechanical oxygenation in intensive care. Patients who

8 do not die from serious cases of COVID-19 may face prolonged recovery periods, including

9 extensive rehabilitation from neurologic damage and loss of respiratory capacity. The only

10 known effective measures to reduce the risk for vulnerable people from serious illness or death

11 caused by COVID-19 are social distancing and improved hygiene, which have led to

12 unprecedented public health measures around the world. According to preliminary data from

13 China, 20 percent of people in high risk categories who contracted COVID-19 there died. Decl.

14 of Dr. Robert Greifinger ¶ 5.

15

People in congregate environments, which are places where people live, eat, and sleep in

16 close proximity, face increased danger of contracting COVID-19, as already evidenced by the

17 rapid spread of the virus in cruise ships and nursing homes. People who are confined in prisons,

18 jails, and detention centers will find it virtually impossible to engage in the necessary social

19 distancing and hygiene required to mitigate the risk of transmission, even with the best-laid

20 plans. For this reason, correctional public health experts have recommended the release from

21 custody of people most vulnerable to COVID-19. Release protects the people with the greatest

22

23 1 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-55, March 15, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200315-sitrep-55-covid-
24 19.pdf?sfvrsn=33daa5cb_6.

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1 vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk

2 mitigation for all people held or working in a prison, jail, or detention center. Release of the most

3 vulnerable people from custody also reduces the burden on the region’s limited health care

4 infrastructure, as it lessens the likelihood that an overwhelming number of people will become

5 seriously ill from COVID-19 at the same time.

6

Petitioners-Plaintiffs (hereinafter Plaintiffs) are people who are particularly vulnerable to

7 serious illness or death if infected by COVID-19. They are being held in civil detention by

8 Immigration and Customs Enforcement (ICE) at the Tacoma Northwest Detention Center

9 (NWDC) in Tacoma, Washington as they await the adjudication of their immigration cases.

10 Plaintiffs are older adults or have medical conditions that lead to high risk of serious COVID-19

11 infection, including lung disease, heart disease, diabetes, epilepsy, kidney disease, autoimmune

12 disorders, spinal cord injury, asthma, and hypertension. The NWDC is located in the Seattle,

13 Washington metropolitan area, the epicenter of the largest COVID-19 outbreak in the United

14 States, and one of the largest known outbreaks in the world. The danger posed by Plaintiffs’

15 detention during the current outbreak of COVID-19 is “so grave that it violates contemporary

16 standards of decency to expose anyone unwillingly to such a risk,” and violates their

17 constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36

18 (1993). For these reasons, Plaintiffs request a temporary restraining order for their immediate

19 release from detention.

20

Notice to Defendants

21

Counsel for Plaintiffs called the U.S. Attorney’s Office for the Western District of

22 Washington to advise it of the emergency reasons requiring them to seek a temporary restraining

23 order. In addition, Plaintiffs’ Counsel e-mailed a copy of the Petition for a Writ of Habeas

24
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1 Corpus and Complaint and Motion for Temporary Restraining Order to Assistant U.S. Attorney

2 Micki Brunner, 206-553-5172, Micki.Brunner@usdoj.gov. Decl. of Matt Adams ¶¶ 2-4.

3

FACTUAL BACKGROUND

4 I. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to Older
Adults People and Those with Certain Medical Conditions. 5

6

COVID-19 is a disease caused by a coronavirus that has reached pandemic status. As of

7 March 15, 2020, 153,517 people worldwide have confirmed diagnoses, including 1,678 people in

8 the United States. 5,735 people have died after contracting COVID-19 worldwide, including 41

9 in the United States. See supra n.1. The transmission of COVID-19 is expected to grow

10 exponentially. Decl. of Dr. Jonathan Golob ¶ 2.

11

People over the age of fifty and those with certain medical conditions face greater

12 chances of serious illness or death from COVID-19. Certain underlying medical conditions

13 increase the risk of serious COVID-19 disease for people of any age, including lung disease,

14 heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes,

15 epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or

16 autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic

17 disorders, stroke, developmental delay, and pregnancy. Golob Decl. ¶ 3; Greifinger Decl. ¶ 7;

18 Decl. of Dr. Marc Stern ¶ 5.

19

In many people, COVID-19 causes fever, cough, and shortness of breath. But for people

20 over the age of fifty or with medical conditions that increase the risk of serious COVID-19

21 infection, shortness of breath can be severe. Golob Decl. ¶ 5. COVID-19 can severely damage

22 lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a

23 permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a

24
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1 medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can

2 affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction

3 can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that

4 limits exercise tolerance and the ability to work. Emerging evidence also suggests that COVID-

5 19 can trigger an over-response of the immune system, further damaging tissues in a cytokine

6 release syndrome that can result in widespread damage to other organs, including permanent

7 injury to the kidneys and neurologic injury. Golob Decl. ¶ 7; Stern Decl. ¶ 6. These

8 complications can manifest at an alarming pace. Patients can show the first symptoms of

9 infection in as little as two days after exposure, and their condition can seriously deteriorate in as

10 little as five days or sooner. Stern Decl. ¶ 4.

11

Even some younger and healthier people who contract COVID-19 may require

12 supportive care, which includes supplemental oxygen, positive pressure ventilation, and in

13 extreme cases, extracorporeal mechanical oxygenation. Most people in higher risk categories

14 who develop serious disease, however, will need advanced support. This level of supportive care

15 requires highly specialized equipment that is in limited supply, and an entire team of care

16 providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care

17 physicians. This level of support can quickly exceed local health care resources. Golob Decl.

18 ¶¶ 5-6; Greifinger Decl. ¶ 6; Stern Decl. ¶ 6.

19

The need for care, including intensive care, and the likelihood of death, is much higher

20 from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of

21 people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even

22 in advanced countries with highly effective health care systems. For people in the highest risk

23 populations, the fatality rate of COVID-19 infection is about 15 percent. Golob Decl. ¶ 4.

24
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1 Preliminary data from China showed that 20 percent of people in high-risk categories who have

2 contracted COVID-19 there have died. Greifinger Decl. ¶ 5. Patients in high-risk categories who

3 do not die from COVID-19 should expect a prolonged recovery, including the need for extensive

4 rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of

5 respiratory capacity. Golob Decl. ¶ 4.

6

There is no vaccine against COVID-19 and there is no known medication to prevent or

7 treat infection from COVID-19. The only known effective measures to reduce the risk for

8 vulnerable people from injury or death from COVID-19 are to prevent them from being infected

9 in the first place. Social distancing, or remaining physically separated from known or potentially

10 infected individuals, and vigilant hygiene, including washing hands with soap and water, are the

11 only known effective measures for protecting vulnerable people from COVID-19. Golob Decl. ¶

12 8; Greifinger Decl. ¶¶ 4, 8; Stern Decl. ¶ 3. Projections by the Centers for Disease Control and

13 Prevention (CDC) indicate that over 200 million people in the United States could be infected

14 with COVID-19 over the course of the epidemic without effective public health intervention,

15 with as many as 1.5 million deaths in the most severe projections. Golob Decl. ¶ 10.

16 II. People Detained at the Northwest Detention Center Face an Elevated Risk of
COVID-19 Transmission. 17
The NWDC is located in the Seattle, Washington metropolitan area, the epicenter of the 18
largest COVID-19 outbreak in the United States at this time, and one of the largest known 19
outbreaks in the world. Golob Decl. ¶ 9; Greifinger Decl. ¶ 9. As of March 15, 2020, there were 20
769 confirmed cases of COVID-19 and 42 deaths from COVID-19 in Washington State.2 The 21
COVID-19 outbreak in Washington has resulted in unprecedented health measures to facilitate 22

23 2 Washington State Department of Health, 2019 Novel Coronavirus Outbreak (COVID-19) (last updated 24 Mar. 15, 2020), https://www.doh.wa.gov/Emergencies/Coronavirus.

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1 and enforce social distancing. Golob Decl. ¶ 12. Immigration courts and the ICE field office in

2 Seattle have already closed in the past month due to staff exposure to COVID-19. It is highly

3 likely, and “perhaps inevitable that COVID-19 will reach NWDC.” Greifinger Decl. ¶ 9.

4

People who live in institutional settings, such as immigration detention centers, who are

5 over the age of 50 or are any age with certain specified medical conditions, “are at grave risk of

6 severe illness and death” if infected by COVID-19. Golob Decl. ¶ 14. Immigration detention

7 facilities are “congregate environments,” or places where people live and sleep in close

8 proximity. Infectious diseases that are communicated by air or touch are more likely to spread in

9 these environments. This presents an increased danger for the spread of COVID-19 if and when

10 it is introduced into a facility. Stern Decl. ¶ 7. Enclosed group environments, like cruise ships or

11 nursing homes, have become the sites for the most severe outbreaks of COVID-19. The highest

12 known person-to-person transmission rate for COVID-19 took place in a skilled nursing home

13 facility in Kirkland, Washington and on afflicted cruise ships in Japan and off the coast of

14 California. Golob Decl. ¶ 11.

15

The conditions of immigration detention facilities pose a heightened public health risk for

16 the spread of COVID-19 that is even greater than in non-carceral institutions. Immigration

17 detention facilities have even greater risk of infectious spread because of crowding, the

18 proportion of vulnerable people detained, and often scant medical care resources. People live in

19 close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread

20 of COVID-19. They may be unable to maintain the recommended distance of 6.5 feet from

21 others, and may share or touch objects used by others. Toilets, sinks, and showers are shared,

22 without disinfection between each use. Food preparation and service is communal with little

23 opportunity for surface disinfection. Staff arrive and leave on a shift basis, and there is limited

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1 ability to adequately screen staff for new, asymptomatic infection. Greifinger Decl. ¶¶ 10-11;

2 Stern Decl. ¶ 7. Many immigration detention facilities lack adequate medical infrastructure to

3 address the spread of infectious disease and treatment of people most vulnerable to illness in

4 detention. Greifinger Decl. ¶ 12. During the H1N1 influenza epidemic in 2009, jails and prisons

5 were sites of severe outbreaks. It is reasonable to expect COVID-19 will also readily spread in

6 detention centers, especially when people cannot engage in proper hygiene and isolate

7 themselves from infected residents or staff. Golob Decl. ¶ 13.

8 III. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention.

9

Because risk mitigation is the only known strategy that can protect vulnerable groups

10 from COVID-19, public health experts with experience in immigration detention and

11 correctional settings have recommended the release of vulnerable detainees from custody.

12 Greifinger Decl. ¶ 13; Stern Decl. ¶ 9. Dr. Marc Stern, a correctional health expert, has

13 concluded that “[f]or detainees who are at high risk of serious illness or death should they

14 contract the COVID-19 virus, release from detention is a critically important way to

15 meaningfully mitigate that risk.” Stern Decl. ¶ 9. For that reason, Dr. Stern recommends the

16 “release of eligible individuals from detention, with priority given to older adults and those with

17 underlying medical conditions most vulnerable to serious illness or death if infected with

18 COVID-19.” Stern Decl. ¶ 11. Dr. Robert Greifinger, a correctional health expert, has concluded

19 that “even with the best-laid plans to address the spread of COVID-19 in detention facilities, the

20 release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the

21 public health recommendation is to release high-risk people from detention, given the heightened

22 risks to their health and safety, especially given the lack of a viable vaccine for prevention or

23 effective treatment at this stage.” Greifinger Decl. ¶ 13. In the event that vulnerable detainees

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1 have been exposed to COVID-19, these experts recommend testing where possible and the

2 release of detainees to a quarantine setting outside of detention in coordination with local health

3 authorities. Greifinger Decl. ¶¶ 14-15; Stern Decl. ¶ 12.

4 IV. Plaintiffs Are Vulnerable to Serious Illness or Death If Infected by COVID-19 and
Should Be Released from Custody. 5
All Plaintiffs have underlying medical conditions that increase their risk of serious illness 6
or death if exposed to COVID-19. Stern Decl. ¶ 13. They are detained at the NWDC as they 7
await adjudication of their civil immigration cases. 8
Karlena Dawson is a 48-year-old citizen of Jamaica. Dawson Decl. ¶ 1. Ms. Dawson has 9
been detained by ICE at the NWDC since February of 2019. Id. ¶ 2. Ms. Dawson has been 10
diagnosed with cholangitis, a progressive autoimmune liver disease. Id. ¶ 4; see also Maltese 11
Decl. Ex. A. She has been informed that she has a life expectancy of 10-12 years. Dawson Decl. 12
Ex. 4. She must take ursodiol twice a day to suppress enzymes because of her auto-immune 13
disease. Id. She also has diabetes, which requires her to take insulin and metformin. Id. ¶ 5. Ms. 14
Dawson is critically vulnerable to COVID-19 because of her autoimmune disease and diabetes. 15
Id. ¶ 7. 16
Alfredo Espinoza Esparza is a 41-year-old citizen of Mexico. On or about January 16, 17
2020, while detained at the NWDC, he suffered acute chest pain that required hospitalization to 18
receive treatment for a heart attack. See Maltese Decl. Ex. B. He was subsequently returned to 19
the NWDC. He also suffers from a rectal hemorrhage which requires medication. Id. Mr. 20
Espinoza is critically vulnerable to COVID-19 because of his significant health issues. 21
Norma Lopez Nunez is a 65-year-old citizen of Mexico. She is detained by ICE at the 22
NWDC. Ms. Lopez has hypertension and heart disease, in addition to major depression and other 23

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1 mental health problems. Maltese Decl. Ex. C. Ms. Lopez is critically vulnerable to COVID-19

2 because of her age and her significant health problems.

3

Marjoris Ramirez-Ochoa is a 43-year-old citizen of Cuba. Ramirez-Ochoa Decl. ¶ 1.

4 She is detained by ICE at the NWDC. Ms. Ramirez has kidney disease, epilepsy, and chronic

5 high blood pressure. Id. ¶¶ 3-6; see also Maltese Decl. Ex. D. While detained, she has suffered

6 five seizures, but has not been referred to medical care outside of the detention center. Ramirez-

7 Ochoa Decl. ¶ 6. She also suffers from respiratory problems, and has contracted pneumonia in

8 the past. Id. ¶ 9. Finally, she has depression, gastritis, and an ovarian cyst, among other

9 conditions. Id. ¶¶ 7-8. Ms. Ramirez is critically vulnerable to COVID-19 because of her

10 significant health problems. Id. ¶¶ 12-13.

11

Maria Gonzalez Mendoza is a 49-year-old citizen of Mexico. Ms. Gonzalez has

12 diabetes, asthma, and high blood pressure. Gonzalez Decl. ¶¶ 3-5; see also Maltese Decl. Ex. E.

13 Ms. Gonzalez is critically vulnerable to COVID-19 because of her significant health problems.

14 Gonzalez Decl. ¶¶ 4, 8-11.

15

Joe Hlupheka Bayana is a 57-year-old citizen of Zimbabwe. Bayana Decl. ¶ 1. Mr.

16 Bayana has type II diabetes. Id. ¶ 3; see also Maltese Decl. Ex. F. He takes insulin three times a

17 day to treat his condition. Bayana Decl. ¶ 3. He receives medication to treat seizures, as well as

18 depression. Id. ¶ 4. Mr. Bayana is critically vulnerable to COVID-19 because of his age and

19 significant health conditions. Id. ¶¶ 5, 8-10.

20

Leonidas Plutin Hernandez is a 59-year-old citizen of Cuba. Plutin Hernandez Decl.

21 ¶ 1. Mr. Plutin has chronic high blood pressure, for which he receives daily medication. Id. ¶¶ 3-

22 4. Mr. Plutin is critically vulnerable to COVID-19 because of his age and chronic high blood

23 pressure. Id. ¶ 10.

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1

Kelvin Melgar Alas is a 40-year-old citizen of El Salvador. Melgar Decl. ¶ 1. He has

2 been detained by ICE since July of 2018. Id. ¶ 7. Mr. Melgar has been confined to a wheelchair

3 since 1995, when he was shot in the spinal cord. Id. ¶ 4; see also Maltese Decl. Ex. G. In

4 addition, he requires a colonoscopy bag and a catheter. Melgar Decl. ¶ 6. While detained at the

5 NWDC he has been transferred for hospitalization on five separate occasions, including multiple

6 times for suspected pneumonia. Id. ¶ 7. Mr. Melgar is critically vulnerable to COVID-19 because

7 of his significant health problems. Id. ¶ 8.

8

Jesus Gonzalez Herrera is a 46-year-old citizen of Mexico. Gonzalez Herrera Decl. ¶ 1.

9 Mr. Gonzalez has diabetes and high blood pressure, which require him to take three different

10 types of medication daily. Id. ¶ 5; see also Maltese Decl. Ex. H. Mr. Gonzalez is critically

11 vulnerable to COVID-19 because of his significant health problems. Gonzalez Herrera Decl. ¶ 7.

12

LEGAL STANDARD

13

On a motion for a temporary restraining order, the plaintiff “must establish that he is

14 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

15 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

16 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l

17 Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that preliminary

18 injunction and temporary restraining order standards are “substantially identical”). A temporary

19 restraining order may issue where “serious questions going to the merits [are] raised and the

20 balance of hardships tips sharply in [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell, 632

21 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). To succeed under the “serious question” test,

22 plaintiffs must show that they are likely to suffer irreparable injury and that an injunction is in

23 the public’s interest. Id. at 1132.

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1

ARGUMENT

2

I. Plaintiffs Are Likely to Succeed on the Merits.

3

a. Plaintiffs’ Continued Detention Violates Their Constitutional Right to

4

Reasonable Safety in Custody.

5

i. The Constitution Is Violated by an Unreasonable Risk of Future

Harm from Contagious Disease.

6 The government has an affirmative duty to provide conditions of reasonable health and

7

safety to the people it holds in its custody. As the Supreme Court has made clear,

8 [W]hen the State takes a person into its custody and holds him there against his will, the

9

Constitution imposes upon it a corresponding duty to assume some responsibility for his

safety and general well-being . . . . The rationale for this principle is simple enough: when

10

the State by the affirmative exercise of its power so restrains an individual’s liberty that it

renders him unable to care for himself, and at the same time fails to provide for his basic

11

human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it

transgresses the substantive limits on state action set by the Eighth Amendment . . . .

12 DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989).3 Conditions

13 that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition

14 against cruel and unusual punishment, even if that harm has not yet come to pass.

15 That the Eighth Amendment protects against future harm to inmates is not a novel

16

proposition. The Amendment, as we have said, requires that inmates be furnished with

the basic human needs, one of which is “reasonable safety.” . . . . It would be odd to deny

17

an injunction to inmates who plainly proved an unsafe, life-threatening condition in their

prison on the ground that nothing yet had happened to them.

18 Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Court in Helling specifically

19 recognized that the risk of contracting a communicable disease could constitute such an “unsafe,

20 life-threatening condition”:

21 In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation

22

were crowded into cells and that some of them had infectious maladies such as hepatitis

23 3 Many of the cases discussed in this Motion involve the protections of the Eighth Amendment, which applies to convicted prisoners. As explained below, see infra Sec. II.a.ii, the Plaintiffs here are civil
24 detainees and are entitled to greater protections than are convicted persons or pretrial criminal detainees.

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1

and venereal disease. This was one of the prison conditions for which the Eighth

Amendment required a remedy, even though it was not alleged that the likely harm would

2

occur immediately and even though the possible infection might not affect all of those

exposed . . . . Nor can we hold that prison officials may be deliberately indifferent to the

3

exposure of inmates to a serious, communicable disease on the ground that the

complaining inmate shows no serious current symptoms.

4

Id. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974),

5 which held that prisoners were entitled to relief under the Eighth Amendment when they showed,

6 inter alia, “the mingling of inmates with serious contagious diseases with other prison inmates”).

7 In this case, Plaintiffs are at serious risk of severe illness or death from COVID-19. See

8 Golob Decl. ¶ 14 (detained persons over age 50 or with pre-existing medical conditions like

9 Plaintiffs’ “are at grave risk of severe illness and death from COVID-19”). Thus, as the Court

10 recognized in Helling and Hutto, the Constitution “require[s] a remedy” that ensures that

11 protection of Plaintiffs’ safety. Helling, 509 U.S. at 33.

12 ii. Plaintiffs, As Civil Detainees, Are Entitled to Conditions Superior to

13

Those of Criminal Detainees, and Need Not Show Deliberate

Indifference to Establish a Constitutional Violation. 14

Immigrant detainees, even those with prior criminal convictions, are civil detainees held 15

pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their 16

constitutional protections while in custody are thus derived from the Fifth Amendment, which 17

provides protection even greater than the Eighth Amendment. The Eighth Amendment, which 18

applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and 19

unusual, but the Fifth Amendment’s due process protections do not allow punishment at all. Bell 20

v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be 21

punished.”). 22

Following the Supreme Court’s holding that civil detainees are entitled to “more 23

considerate treatment” than their criminal counterparts, Youngberg v. Romeo, 457 U.S. 307, 32124

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1 22 (1982), the Ninth Circuit held that civil detainees, like Plaintiffs here, are entitled to

2 conditions of confinement that are superior to those of convicted prisoners and to those of

3 criminal pretrial detainees. Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004), cert. denied,

4 546 U.S. 820 (2005); see also King v. Cty. of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018)

5 (finding presumption of punitive, and thus unconstitutional, treatment where conditions of

6 confinement for civil detainees are similar to those faced by pre-trial criminal detainees). And

7 while convicted persons must show “deliberate indifference” on the part of prison officials to

8 establish a violation of the Eighth Amendment, Farmer v. Brennan, 511 U.S. 825, 828 (1994),

9 there is no such requirement for civil detainees challenging their conditions of confinement.

10 Jones, 393 F.3d at 934. A condition of confinement for a civil immigration detainee violates the

11 Constitution “if it imposes some harm to the detainee that significantly exceeds or is independent

12 of the inherent discomforts of confinement and is not reasonably related to a legitimate

13 governmental objective or is excessive in relation to the legitimate governmental objective.”

14 Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8188563, at *5 (D. Ariz.

15 Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (citing Kingsley v.

16 Hendrickson, 135 S. Ct. 2466, 2473-74 (2015)).

17

iii. The Threat of COVID-19 Imposes a Harm that Significantly Exceeds

the Inherent Discomforts of Confinement and Is Excessive in Relation

18

to the Government’s Interest.

19

The risk of serious illness or death from COVID-19 significantly exceeds “the inherent

20 discomforts of confinement.” Unknown Parties, 2016 WL 8188563, at *5. In normal times,

21 crowding and close quarters, the sharing of toilets, sinks, and showers, and communal food

22 preparation and service may be considered uncomfortable. But in light of COVID-19, these

23 conditions present a deadly threat to Plaintiffs’ lives. Plaintiffs are older adults and people with

24
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1 medical conditions who are at “grave risk of severe illness or death” if they contract COVID-19.

2 Golob Decl. ¶ 14. Social distancing and hygiene measures are Plaintiffs’ only defense against

3 COVID-19. Golob Decl. ¶ 12; Greifinger Decl. ¶¶ 10-11; Stern Decl. ¶ 8. Like cruise ships and

4 nursing homes, which have been the sites for the most severe outbreaks of COVID-19,

5 immigration detention centers are “congregate environments” where people live, sleep, and eat in

6 close quarters. These conditions pose even greater risk of infectious spread, and as a result,

7 Plaintiffs face unreasonable harm from continued detention.

8

By the same token, the threat of serious illness and death from COVID-19 “is not

9 reasonably related to” and vastly outweighs any government interest in Plaintiffs’ confinement.

10 Unknown Parties, 2016 WL 8188563, at *5. As the Supreme Court has emphasized, “[t]he

11 proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in

12 purposes and effect.” Zadvydas, 533 U.S. at 690. Thus, “[t]here is no sufficiently strong special

13 justification . . . for indefinite civil detention.” Id. If the government’s interest in effectuating

14 removal and protecting the community cannot justify indefinite detention, it also cannot justify

15 the similarly “potentially permanent” medical harm and death that Plaintiffs could face. See id. at

16 690-91; cf. D'Alessandro v. Mukasey, 628 F. Supp. 2d 368, 399 (W.D.N.Y. 2009) (considering

17 immigrant’s age and “constellation of serious, debilitating, and progressive health problems” to

18 weigh against government’s concern with flight risk and interest in continued detention).

19

b. ICE Has the Authority to Release Detained People in Its Custody.

20

ICE both has the authority to exercise discretion to release individuals from custody and

21 routinely exercises this discretion to release particularly vulnerable detainees like Plaintiffs.

22 Decl. of Andrew Lorenzen-Strait ¶¶ 3-8; 8 U.S.C. §§ 1182(d)(5); 1226(a), 1231(a)(3); 8 C.F.R.

23 §§ 212.5(b)(1), 236.1(c)(8). As former Deputy Assistant Director for Custody Programs in ICE

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1 Enforcement and Removal Operations Lorenzen-Strait explains, “ICE has exercised and still

2 exercises discretion for purposes of releasing individuals with serious medical conditions from

3 detention,” Lorenzen-Strait Decl. ¶ 3, and “ICE exercises humanitarian parole authority all the

4 time for serious medical reasons.” Id. ¶ 4 (emphasis added). Indeed, regulations governing ICE’s

5 release authority explicitly state that serious medical conditions are a reason to parole an

6 individual, as “continued detention would not be appropriate.” 8 C.F.R. § 212.5(b)(1). This

7 exercise of discretion comes from a long line of authority and agency directives explicitly

8 instructing officers to exercise favorable discretion in cases involving severe medical concerns

9 and other humanitarian equities militating against detention. Lorenzen-Strait Decl. ¶¶ 4 n.1, 12

10 (citing memoranda from former DHS Secretary DHS Jeh Johnson, former ICE Director John

11 Torres, and former ICE Director John Morton).

12

Importantly, ICE’s discretion applies regardless of the statutory basis for the noncitizen’s

13 detention. Id. ¶ 10 (“[I]ndividuals held under mandatory detention, pursuant to [8 U.S.C. §

14 1226(c)], were also eligible for release”). Thus, the agency’s policy and practice has been to limit

15 the detention of any individuals regardless of their status if they had particular vulnerabilities,

16 such as those who are suffering from serious physical or mental illness, have disabilities, are

17 pregnant, or whose detention was otherwise not in the public interest. Id. ¶ 4 (citing, inter alia,

18 ICE’s risk classification assessment tools). In particular, ICE has taken into consideration factors

19 such as whether the detainees faced a heightened risk of medical harm in detention, id. ¶¶ 5-7,

20 and would release individuals where appropriate medical care was not available in custody, id. ¶

21 9.

22

Plaintiffs, who are all at a high risk from suffering complications and/or death from

23 COVID-19, are detainees with special vulnerabilities for whom detention is plainly dangerous

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1 and unjustified. Id. ¶ 8; see supra Factual Background Sec. II-IV. Considering ICE’s well-

2 established authority and practice of exercising discretion in these circumstances, along with the

3 substantial medical and health care costs that ICE would otherwise bear from an outbreak,

4 Plaintiffs’ immediate release would serve the interests of all detainees and the agency.

5

c. The Court Has Authority to Order Plaintiffs’ Release as the Sole Effective

Remedy for the Constitutional Violation.

6 “Federal courts possess whatever powers are necessary to remedy constitutional

7 violations because they are charged with protecting these rights.” Stone v. City & Cnty. of San

8 Francisco, 968 F.2d 850, 861 (9th Cir. 1992). As a result, “[w]hen necessary to ensure

9 compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s

10 population.” Brown v. Plata, 563 U.S. 493, 511 (2011).

11 This principle is well-established. For example, in cases involving prisons and jails,

12 federal courts have repeatedly ordered the release of detained persons when necessary to remedy

13 constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-

14 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its

15 authority in directing release of low-bond pretrial detainees as necessary to reach a population

16 cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding

17 that district court properly exercised remedial powers to order a prison’s population reduced to

18 alleviate unconstitutional conditions, and noting other cases); Inmates of the Allegheny Cty. Jail

19 v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our

20 power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139

21 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance

22 with minimum constitutional standards, then the state simply will not be permitted to detain such

23

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1 persons.”); Herrera v. Pierce Cty., No. C-95-5025 (W.D. Wash. Oct. 31, 1995) (stipulated

2 order).4

3

In this case, the release of Plaintiffs from detention is the only effective remedy for the

4 constitutional violation they face. Preventive measures that may be effective in the community,

5 such as maintaining a distance of six feet from other persons and frequent disinfection, are

6 simply not possible in the detention setting. See supra Factual Background Sec. II-III; Greifinger

7 Decl. ¶ 11; Stern Decl. ¶ 7. “The only viable public health strategy available is risk mitigation.

8 Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the

9 release of high-risk individuals is a key part of a risk mitigation strategy.” Greifinger Decl. ¶ 13.

10

For the foregoing reasons, Plaintiffs are likely to succeed on the merits of their claim that

11 their continued detention violates their Fifth Amendment due process right to safety in

12 government custody.

13

II. The Remaining Factors Weigh Heavily in Favor of Granting a Temporary

Restraining Order. 14

a. Plaintiffs Are Likely to Suffer Irreparable Harm Absent the Temporary

15

Restraining Order.

16 The Ninth Circuit has made clear that “the deprivation of constitutional rights
17 ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th
18 Cir. 2012) (internal quotation marks omitted). Moreover, as at least one judge in this district has
19 recognized, the dangerous and unsafe conditions of detention that Plaintiffs face also constitute
20

21 4 In 1996, Congress enacted the Prison Litigation Reform Act (PLRA) which, inter alia, imposed a heightened standard for “prisoner release orders.” 18 U.S.C. § 3626(a)(3). Applying those heightened

22

standards, the Supreme Court affirmed an order directing California to reduce crowding in its prisons where overcrowding was the “primary cause” of “severe and unlawful mistreatment of prisoners through

grossly inadequate provision of medical and mental health care.” Brown v. Plata, 563 U.S. 493, 502 23 (2011). The PLRA does not apply to cases brought by detained immigrants challenging the conditions of

their confinement. Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002).

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1 irreparable harm supporting injunctive relief. Padilla v. U.S. Immigration & Customs

2 Enforcement, 387 F. Supp. 3d 1219, 1231 (W.D. Wash. 2019) (recognizing that “substandard

3 physical conditions, [and] low standards of medical care” in immigration detention constitute

4 irreparable harm justifying injunctive relief). The Ninth Circuit also has recognized that

5 irreparable harm exists where government actions threaten to worsen an individual’s health. See

6 M.R. v. Dreyfus, 663 F.3d 1100, 1111 (9th Cir. 2011), as amended by 697 F.3d 706 (9th Cir

7 2012); see also, e.g., Indep. Living Cent. of S. California, Inc. v. Shewry, 543 F.3d 1047, 1050

8 (9th Cir. 2008) (recognizing that Medi-Cal beneficiaries would suffer irreparable harm where

9 new policy would limit beneficiaries’ access to “much-needed pharmaceuticals”).

10

Each of these reasons support immediate relief here. Plaintiffs are older adults or people

11 with underlying medical conditions that increase their likelihood of severe illness or death if they

12 contract COVID-19. Stern Decl. ¶ 13. As discussed above, the fatality rate for people infected

13 with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced

14 countries with highly effective health care systems. Golob Decl. ¶ 4. The fatality rate is estimated

15 to be about 15 percent for people in the highest risk populations. Id. Patients in high-risk

16 categories who do not die from COVID-19 should expect a prolonged recovery, including the

17 need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage,

18 and the loss of respiratory capacity. Id. For these reasons, public health experts have concluded

19 that people with these characteristics in institutional settings such as immigration detention

20 centers “are at grave risk of severe illness and death.” Id. ¶ 14.

21

22

23

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1

b. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’

Favor.

2 Both the balance of equities and the public interest heavily favor the Plaintiffs. “[I]t is

3 always in the public interest to prevent the violation of a party’s constitutional rights.”

4 Melendres, 695 F.3d at 1002 (quotation omitted).

5 Furthermore, Plaintiffs will suffer irreparable harm without immediate relief, including

6 unreasonable risk of long-lasting medical harm or death if infected by COVID-19. See supra

7 Sec. II.a. Plaintiffs are civil detainees who are at grave risk of serious illness or death if exposed

8 to COVID-19. Golob Decl. ¶ 14; Greifinger Decl. ¶¶ 7-10; Stern Decl. ¶¶ 3-6, 13. Whatever

9 interest that the government asserts in their continued detention cannot be outweighed by such

10 irreparable harm. “Faced with . . . preventable human suffering, [the Ninth Circuit] ha[s] little

11 difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Hernandez

12 v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437

13 (9th Cir. 1983)).

14 Moreover, it is in both the Defendants’ and the broader public interest to release

15 detainees with particular medical vulnerabilities. The release of people most vulnerable to

16 COVID-19 reduces the overall health risk for detainees and facility staff alike at the NWDC.

17 Stern Decl. ¶ 9. ICE has an interest in preventing any potential spread of COVID-19 in its

18 detention facility, particularly because detainees face great difficulty engaging in proper hygiene

19 and social distancing in a detention environment. Id. ¶¶ 7-9. Immigration detention facilities face

20 greater risk of infectious spread because of crowding, the high percentage of detained people

21 vulnerable to serious illness in the event of COVID-19 transmission, and limited availability of

22 medical care. Golob Decl. ¶ 13; Greifinger Decl. ¶¶ 10-12. Public health officials have testified

23 that even with the best-laid plans, the release of vulnerable individuals is key to the risk

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1 mitigation strategy of any detention facility because it reduces the total number of detainees,

2 allows for greater social distancing, and prevents overloading the work of detention staff. Stern

3 Decl. ¶¶ 9-11; Greifinger Decl. ¶ 13. Plaintiffs’ release not only imposes minimal harm to the

4 government, but also furthers ICE’s interests in maintaining a healthy and orderly environment

5 at the NWDC. Stern Decl. ¶ 9; Greifinger Decl. ¶ 13.

6

Lastly, releasing Plaintiffs is clearly in the broader public’s interest. Here, “the impact of

7 [a temporary restraining order] reaches beyond the parties, carrying with it a potential for public

8 consequences.” Hernandez, 872 F.3d at 996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

9 1139 (9th Cir. 2009)). An outbreak of COVID-19 could put significant pressure on or exceed the

10 capacity of local health infrastructure. Stern Decl. ¶ 6. The COVID-19 outbreak in Seattle has

11 already resulted in the need for unprecedented public health measures and caused a strain on the

12 local health care system. Golob Decl. ¶ 12; Greifinger Decl. ¶ 9. The release of people most

13 vulnerable to serious illness from COVID-19 reduces the health and economic burden on the

14 local community and health infrastructure at large. Greifinger Decl. ¶¶ 8, 13; Stern Decl. ¶¶ 9-11;

15 Golob Decl. ¶ 14; see also Hernandez, 872 F.3d at 996-97 (“[T]he general public’s interest in

16 efficient allocation of the government’s fiscal resources favors granting [relief]”).

17

III. The Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a

Temporary Restraining Order.

18 Federal Rule of Civil Procedure 65(c) provides that “The court may issue a preliminary

19 injunction or a temporary restraining order only if the movant gives security in an amount that

20 the court considers proper to pay the costs and damages sustained by any party found to have

21 been wrongfully enjoined or restrained.” However, “Rule 65(c) invests the district court with

22 discretion as to the amount of security required, if any.” Jorgensen v. Cassiday, 320 F.3d 906,

23 919 (9th Cir. 2003) (internal quotation marks and citation omitted). District courts routinely

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1 exercise this discretion to require no security in cases brought by indigent and/or incarcerated

2 people. See, e.g., Toussaint v. Rushen, 553 F. Supp. 1365, 1383 (N.D. Cal. 1983) (state

3 prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 n. 42 (C.D. Cal. 1982) (detained

4 immigrants). This Court should do the same here.

5

CONCLUSION

6

For the foregoing reasons, Plaintiffs’ motion for a temporary restraining order should be

7 granted.

8 Respectfully submitted on this 16th of March, 2020.

9

s/ David C. Fathi

David C. Fathi, WSBA No. 24893**

10

dfathi@aclu.org

11

s/ Eunice H. Cho

Eunice H. Cho, WSBA No. 53711**

12

echo@aclu.org

13

American Civil Liberties Union Foundation,

National Prison Project

14

915 15th Street N.W., 7th Floor

Washington, DC 20005

15

Tel: (202) 548-6616

16

Omar C. Jadwat*

ojadwat@aclu.org

17

Michael Tan*

mtan@aclu.org

18

American Civil Liberties Union Foundation,

Immigrants’ Rights Project

19

125 Broad Street, 18th Floor

New York, NY 10004

20

Tel: (212) 549-2600

21

My Khanh Ngo*

mngo@aclu.org

22

American Civil Liberties Union Foundation,

Immigrants’ Rights Project

23

39 Drumm Street

San Francisco, CA 94111

24

Tel: (415) 343-0774

MOT. FOR TEMP. RESTRAINING ORDER - 22 Case No. 2:20-cv-409

s/ Matt Adams Matt Adams, WSBA No. 28287 matt@nwirp.org s/ Aaron Korthuis Aaron Korthuis WSBA No. 53974 aaron@nwirp.org Northwest Immigrant Rights Project 615 Second Ave., Suite 400 Seattle, WA 98104 Tel: (206) 957-8611
s/ Tim Henry Warden-Hertz Tim Henry Warden-Hertz, WSBA No. 53042 tim@nwirp.org Northwest Immigrant Rights Project 1119 Pacific Ave., Suite 1400 Tacoma, WA 98402 Tel: (206) 957-8652
American Civil Liberties Union 915 15th St. NW, Washington, DC 20005
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1

s/ Enoka Herat

Enoka Herat, WSBA No. 43347

2

eherat@aclu-wa.org

3

s/ John Midgley

John Midgley, WSBA No. 6511

4

jmidgley@aclu-wa.org

5

American Civil Liberties Union Foundation

of Washington

6

P.O. Box 2728

7 *Pro hac vice application forthcoming **Not admitted in DC; practice limited to federal courts
8 Attorneys for Plaintiffs
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on March 16, 2020, I electronically filed the foregoing document and

3 accompanying proposed order with the Clerk of the Court using the CM/ECF system. I further

4 certify that I have mailed Respondents-Defendants a copy of this document and the

5 accompanying proposed order via certified, first class mail. In addition, I have emailed copies of

6 these documents to the following email addresses at the U.S. Attorney’s Office for the Western

7 District of Washington:

8

Micki.Brunner@usdoj.gov

Kristin.B.Johnson@usdoj.gov

9

Dated: March 16, 2020

10

11

12

13

s/ Matt Adams Matt Adams Email: matt@nwirp.org Northwest Immigrant Rights Project 615 Second Ave., Ste 400 Seattle, WA 98104 (206) 957-8611

14

15

16

17

18

19

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1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 KARLENA DAWSON, et al.,

CASE NO. C20-0409JLR-MAT

10 Petitioner-Plaintiffs, ORDER DENYING

11 v.

TEMPORARY RESTRAINING ORDER

12 NATHALIE ASHER, et al.,

13 Respondent-Defendants.

14 I. INTRODUCTION
15 Before the court is Petitioner-Plaintiffs Karlena Dawson, Alfredo Espinoza
16 Esparza, Normal Lopez-Nunez, Marjoris Ramirez Ochoa, Maria Gonzalez Mendoza, Joe
17 Hlupheka Bayana, Leonidas Plutin Hernandez, Kelvin Melgar Alas, and Jesus Gonzalez
18 Herrera’s (collectively, “Plaintiffs”) motion for a temporary restraining order (“TRO”).
19 (Mot. (Dkt. # 2).) Respondent-Defendants Nathalie Asher, Matthew T. Albence, Steven
20 Langford, and United States Immigration and Customs Enforcement (“ICE”)
21 (collectively, “Defendants”) filed a response. (See Resp. (Dkt. # 28).)
22

ORDER - 1

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1

The court has reviewed the motion, the response, the petition and complaint1

2 (Compl. (Dkt. # 1)), the parties’ submissions in support of and in opposition to the

3 motion, the relevant portions of the record, and the applicable law. Being fully advised, 2

4 the court DENIES the motion.

5

II. BACKGROUND

6 Plaintiffs are nine individuals currently held in civil detention by ICE at the Tacoma

7 Northwest Detention Center (“NWDC”) in Tacoma, Washington. (See Compl. ¶¶ 39-66.)

8 On March 16, 2020, Plaintiffs filed their complaint, seeking a writ of habeas corpus, or in

9 the alternative, injunctive relief, against Defendants. (See id. at 20.) Plaintiffs represent

10 that they are “particularly vulnerable to serious illness or death if infected by COVID-19”

11 as a result of their age and/or medical condition. (See id. ¶¶ 39-66.) Plaintiffs then filed

12 the present motion, in which they seek “immediate release” from detention as they await

13 adjudication of their immigration cases. (See Mot. at 7.) They argue that “[t]he

14 conditions of immigration detention facilities pose a heightened public health risk for the

15 spread of COVID-19” due to “crowding, the proportion of vulnerable people detained,

16 and often scant medical care resources,” in addition to the inability to achieve the social

17 //

18 //

19 1 Petitioner-Plaintiffs’ initial filing is a “petition for writ of habeas corpus . . . and
20 complaint for injunctive relief.” (See Compl. at 1.) For simplicity’s sake, the court refers to the parties as “Plaintiffs” and “Defendants” and the petition-complaint as the “complaint.”

21

2 Neither party requests oral argument (see Mot. at 1; Resp. at 1), and the court finds oral

22

argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4); LCR 65(b)(3).

ORDER - 2

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1 distancing needed to effectively prevent the spread of COVID-19. (See id.) The court

2 now considers the motion.

3

III. ANALYSIS

4

Plaintiffs contend that their continued detention in the face of the COVID-19

5 pandemic violates their Fifth Amendment right to reasonable safety while in custody.

6 (See Mot. at 12.) For the reasons set forth below, the court DENIES Plaintiffs’ motion

7 for a TRO.

8 A. Legal Standard

9

The standard for issuing a TRO is the same as the standard for issuing a

10 preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434

11 U.S. 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be

12 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

13 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for

14 preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to

15 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

16 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an

17 injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th

18 Cir. 2009) (citing Winter, 555 U.S. at 20).

19

As an alternative to this test, a preliminary injunction is appropriate if “serious

20 questions going to the merits were raised and the balance of the hardships tips sharply in

21 the plaintiff’s favor,” thereby allowing preservation of the status quo when complex legal

22 questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell,

ORDER - 3

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1 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the “serious questions” approach

2 supports the court’s entry of a TRO only so long as the plaintiff also shows that there is a

3 likelihood of irreparable injury and that the injunction is in the public interest. Id. at

4 1135. The moving party bears the burden of persuasion and must make a clear showing

5 that it is entitled to such relief. Winter, 555 U.S. at 22.

6 B. Plaintiffs’ Motion

7

The court concludes that Plaintiffs do not meet their burden to make a clear

8 showing that they are likely to succeed on the merits or that they are likely to face

9 irreparable harm. Therefore, the court DENIES Plaintiffs’ motion for a TRO.3

10

1. Likelihood of Success on the Merits

11

To evaluate the constitutionality of a pretrial detention condition under the Fifth

12 Amendment, a district court must determine whether those conditions “amount to

13 punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60

14 L. Ed. 2d 447 (1979); see also see also Kingsley v. Hendrickson, --- U.S. ---, 135 S. Ct.

15 2466, 2473-74 (2015). Punishment may be shown through express intent or a restriction

16 or condition that is not “reasonably related to a legitimate governmental objective.” Bell,

17 441 U.S. at 539.

18 // 19 //

20 3 Having concluded that Plaintiffs fail to meet the first two prongs of the TRO standard,

21

the court finds it unnecessary to address the third and fourth prongs. Defendants also raise arguments based on Article III standing and the limits of the habeas statutes. Plaintiffs have not

22

had an opportunity to respond to those arguments, and because they are not necessary to resolve Plaintiffs’ present motion, the court leaves them for another day.

ORDER - 4

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1

First, Plaintiffs do not present allegations or evidence to show Defendants have an

2 “express intent” to punish Plaintiffs. (See generally Mot.) Second, preventing detained

3 aliens from absconding and ensuring that they appear for removal proceedings is a

4 legitimate governmental objective. See Jennings v. Rodriguez, --- U.S ---, 138 S. Ct. 830,

5 836 (2018); Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas v. Davis, 533 U.S. 678,

6 690-91 (2001). Third, Plaintiffs’ current confinement does not appear excessive in

7 relation to that objective. Plaintiffs do not cite to authority, and the court is aware of

8 none, under which the fact of detention itself becomes an “excessive” condition solely

9 due to the risk of a communicable disease outbreak—even one as serious as COVID-19.

10

Plaintiffs’ cited authority addresses the exposure of inmates or detainees to

11 existing conditions within the facility at issue. See, e.g., Hutto v. Finney, 437 U.S. 678,

12 682-83 (1978) (mingling of inmates with infectious diseases with others); Gates v.

13 Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (same); Helling v. McKinney, 509 U.S. 25 at

14 33, 35 (1993) (placement of inmate with emphasema in a cell with a cellmate who

15 smoked often). Here, there is no evidence that anyone at NWDC has COVID-19, and

16 Plaintiffs do not address the measures Defendants are taking to prevent such a spread

17 from occurring. (See Resp. at 3-6 (detailing measures to prevent the spread of

18 COVID-19, including suspending social visitation, assessing detainees for fever and

19 respiratory illness, isolating detainees with COVID-19-compatible symptoms, and

20 instructing detainees on hand washing and hygiene).) Finally, even if Plaintiffs could

21 show a Fifth Amendment violation, Plaintiffs provide no authority under which such a

22 violation would justify immediate release, as opposed to injunctive relief that would

ORDER - 5

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1 leave Plaintiffs detained while ameriolating any alleged violative conditions within the

2 facility. Thus, the court concludes that Plaintiffs fail to meet their burden of clearly

3 showing that they are likely to succeed on the merits of their claims.

4

2. Irreparable Harm

5

Plaintiffs do not show that “irreparable injury is likely in the absence of an

6 injunction.” Winter, 555 U.S. at 22. The “possibility” of harm is insufficient to warrant

7 the extraordinary relief of a TRO. See id. There is no evidence of an outbreak at the

8 detention center or that Defendants’ precautionary measures are inadequate to contain

9 such an outbreak or properly provide medical care should it occur.4 Accordingly, the

10 court concludes that Plaintiffs fail to meet their burden of clearly showing that irreparable

11 harm is likely in the absence of an injunction.

12

IV. CONCLUSION

13

For the foregoing reasons, the court DENIES Plaintiffs’ motion for a temporary

14 restraining order (Dkt. # 2).

15

Dated this 19th day of March, 2020.

16

17

A

18

JAMES L. ROBART

United States District Judge

19

20

21

4 The court is mindful of the gravity and rapidly changing nature of the COVID-19

22

pandemic. The court emphasizes that this order is based on and extends no further than the narrow set of facts, arguments, and requested relief presently before the court.

ORDER - 6

 Case 2:20-cv-00409-JLR-MAT Document 34 Filed 03/20/20 Page 1 of 2

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

KARLENA DAWSON, et al.,

CASE NO. C20-0409JLR-MAT

11

Petitioner-Plaintiffs,

ORDER TO SHOW CAUSE

v.

12

NATHALIE ASHER, et al., 13

Respondent-Defendants. 14

15

Before the court is Respondent-Defendants Nathalie Asher, Matthew T. Albence,

16 Steven Langford, and United States Immigration and Customs Enforcement (“ICE”)

17 (collectively, “Defendants”) response to Petitioner-Plaintiffs Karlena Dawson, Alfredo

18 Espinoza Esparza, Normal Lopez-Nunez, Marjoris Ramirez Ochoa, Maria Gonzalez

19 Mendoza, Joe Hlupheka Bayana, Leonidas Plutin Hernandez, Kelvin Melgar Alas, and

20 Jesus Gonzalez Herrera’s (collectively, “Plaintiffs”) motion for a temporary restraining

21 order (“TRO”). (See Resp. (Dkt. # 28); see also Mot. (Dkt. # 2).)

22 //

ORDER - 1

Case 2:20-cv-00409-JLR-MAT Document 34 Filed 03/20/20 Page 2 of 2

1

Defendants’ response raises a challenge to Plaintiffs’ Article III standing. (See

2 Resp. at 7-11.) Standing is a threshold jurisdictional matter. See Lowry v. Barnhart, 329

3 F.3d 1019, 1022 (9th Cir. 2003) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S.

4 83, 94 (1998)); Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). However,

5 Plaintiffs have not yet had an opportunity to respond to Defendants’ jurisdictional

6 challenge. (See generally Dkt.) Therefore, the court ORDERS Plaintiffs to show cause

7 why this case should not be dismissed for lack of standing.

8

Plaintiffs shall file their response to this order by Wednesday, March 25, 2020.

9 Plaintiffs’ response shall not exceed 10 pages in length and shall be limited solely to the

10 question of Article III standing and the court’s subject matter jurisdiction. Defendants

11 may, but are not required to, file a reply to Plaintiffs’ response by Tuesday, March 31,

12 2020. If Defendants file a reply, their reply shall not exceed 10 pages.

13

Dated this 20th day of March, 2020.

14

15

16

A

17

JAMES L. ROBART

United States District Judge 18

19

20

21

22

ORDER - 2

 Case 2:20-cv-00409-JLR-MAT Document 4 Filed 03/16/20 Page 1 of 3
Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 132,000 people have been diagnosed with COVID-19 around the world and 4,947 have died.2 In the United States, about 1,700 people have been diagnosed and 41 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
5. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 13, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 13, 2020.

Case 2:20-cv-00409-JLR-MAT Document 4 Filed 03/16/20 Page 2 of 3
6. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that will likely be in very short supply.
7. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
8. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. At least one nursing home in the Seattle area has had cases of COVID-19 and has been quarantined.
9. The Seattle metropolitan area, hit hard by COVID, is the epicenter of the largest national outbreak at this time. Therefore, it is highly likely, and perhaps inevitable, that COVID19 will reach the immigration detention facility in Tacoma, Washington. Immigration courts and the ICE field office in Seattle have already closed this month due to staff exposure to COVID-19.
10. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
11. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
12. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
13. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks

Case 2:20-cv-00409-JLR-MAT Document 4 Filed 03/16/20 Page 3 of 3
to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. 14. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released. 15. This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from NWDC by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Pierce County or Washington State Department of Health.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day in March, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

Case 2:20-cv-00409-JLR-MAT Document 5 Filed 03/16/20 Page 1 of 4

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Case 2:20-cv-00409-JLR-MAT Document 5 Filed 03/16/20 Page 4 of 4

Case 2:20-cv-00409-JLR-MAT Document 6 Filed 03/16/20 Page 1 of 3
Declaration of Dr. Marc Stern
I, Marc Stern, declare as follows:
1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. I most recently served as the Assistant Secretary for Health Care at the Washington State Department of Corrections. I also have considerable familiarity with the immigration detention system. I served for four years as a medical subject matter expert for the Officer of Civil Rights and Civil Liberties, U.S. Department of Homeland Security, and as a medical subject matter expert for one year for the California Attorney General’s division responsible for monitoring the conditions of confinement in Immigration and Customs Enforcement (ICE) detention facilities. I have also served as a consultant to Human Rights Watch in their preparation of two reports on health-related conditions of confinement in ICE detention facilities. In those capacities, I have visited and examined more than 20 ICE detention facilities and reviewed hundreds of records, including medical records and detention death reviews of individuals in ICE detention. Attached as Exhibit A is a copy of my curriculum vitae.
2. COVID-19 is a serious disease and has reached pandemic status. At least 132,758 people around the world have received confirmed diagnoses of COVID 19 as of March 13, 2020, including 1,629 people in the United States. At least 4,955 people have died globally as a result of COVID-19 as of March 13, 2020, including 41 in the United States. These numbers will increase, perhaps exponentially.
3. COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has immunity. The only way to control the virus is to use preventive strategies, including social distancing.
4. The time course of the disease can be very rapid. Individuals can show the first symptoms of infection in as little as two days after exposure and their condition can seriously deteriorate in as little as five days (perhaps sooner) after that.
5. The effects of COVID-19 are very serious, especially for people who are most vulnerable. Vulnerable people include people over the age of 50, and those of any age with underlying health problems such as – but not limited to – weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.
6. Vulnerable people who are infected by the COVID-19 virus can experience severe respiratory illness, as well as damage to other major organs. Treatment for serious cases of COVID-19 requires significant advanced support, including ventilator assistance for respiration and intensive care support. An outbreak of COVID-19 could put significant pressure on or exceed the capacity of local health infrastructure.
7. Detention facilities are congregate environments, i.e. places where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. This therefore presents an increased danger for the spread of COVID-

Case 2:20-cv-00409-JLR-MAT Document 6 Filed 03/16/20 Page 2 of 3
19 if and when it is introduced into the facility. To the extent that detainees are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in another congregate environment: nursing homes and cruise ships.
8. Social distancing in ways that are recommended by public health officials can be difficult, if not impossible in detention facilities, placing people at risk, especially when the number of detainees is high.
9. For detainees who are at high risk of serious illness or death should they contract the COVID-19 virus, release from detention is a critically important way to meaningfully mitigate that risk. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff such that they can continue to ensure the safety of detainees.
10. The release of detainees, especially those with increased health-related vulnerability, also supports the broader community because carceral and detention settings, regardless of the level of government authorities that oversee them, are integral parts of the community’s public health infrastructure. Reducing the spread and severity of infection in a Federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization, which in turn reduces the health and economic burden to the local community at large.
11. As a correctional public health expert, I recommend release of eligible individuals from detention, with priority given to the elderly and those with underlying medical conditions most vulnerable to serious illness or death if infected with COVID-19.
12. Conditions related to COVID-19 are changing rapidly and may change between the time I execute this Declaration and when this matter appears before the Court. One of the most worrisome changes would be confirmation of a case of COVID-19 within the detention center, either among staff or detainees. In the event of this occurring, and eligible detainees being quarantined or isolated due to possible exposure to the virus, I recommend that the detainee(s) be tested for the virus if testing is available. Armed with the results of that test if it is available, or in the absence of other instructions from the health authority of the municipality to which they will be returning or the Washington State public health authority, those who can easily return to a home without exposure to the public, should be released to that home for continued quarantine or isolation for the appropriate time period. All others can be released to appropriate housing as directed or arranged in coordination with the relevant health authority.
13. I have reviewed Plaintiffs’ complaint and on the basis of the claims presented, conclude that Plaintiffs have underlying medical conditions that increase the risk of serious illness or death if exposed to COVID-19. Due to the risks caused by the congregate environment in immigration

Case 2:20-cv-00409-JLR-MAT Document 6 Filed 03/16/20 Page 3 of 3
detention, compounded by the marked increase in risk conferred by their underlying medical conditions, I recommend their release.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this __15th___ day in March, 2020 in Tumwater, Washington.
____________________________ Dr. Marc Stern

 Case 2:20-cv-00409-JLR-MAT Document 31 Filed 03/18/20 Page 1 of 4

IINITED STATES DISTRICT COIIRT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

KARLENA DAWSON, et al., Petitioners-Plaintiffs,
v.
NATHALIE ASHER, et al.,
Respondents-Defendants.

Case No. C20-0409-JLR-MAT

DECLARATION OI'DR ADA RTVERA
I, Dr. Ada Rivera make the following statements under oath and subject to the penalty of
pe{ury:

1. I am currently the Deputy Assistant Director for Clinical Services/Medical Director of the ICE Health Service Corps (IHSC) of Enforcement and Removal Operations, U.S. lmmigration and Customs Enforcement (ICE). I have held this position since July 2017.

2. In my current position, I oversee and monitor all clinical services at IHSC-staffed
facilities that house ICE detainees, including the Northwest ICE Processing Center O{IPC) in Tacoma, Washington.

a J.

IHSC provides direct medical, dental, and mentai health patient care to approximately

13,500 detainees housed at 20IHSC-staffed facilities throughout the nation.

4. IHSC comprises a multidisciplina.y workforce that consists of U.S. Public Healttr Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.

5. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been hacking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to IHSC staff for the screening and management of potential exposure among detainees.

6. Moreover, ICE has maintained a pandemic workforce protection plan since February 2014, which was last updated in May 2017. This plan provides specific guidance for
biological threats such as COVID-l9. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-l9.

Case 2:20-cv-00409-JLR-MAT Document 31 Filed 03/18/20 Page 2 of 4
7. Also, IHSC has been in contact with relevant offices within the Department of Homeland
Security, and in January 2020,the DHS Workforce Safety and Health Division provided DHS components additional guidance to address assumed risks and interim workplace controls, including the use of N95 masks, available respirators, and additional personal protective equipment.
8. As a precautionary measure, ICE has temporarily suspended social visitation in all
detention facilities.
9. In testing for COVID-l9, IHSC is also following guidance issued by the Centers for
Disease Control to safeguard those in its custody and care.
10. IHSC has issued recommendations to the field units at detention centers, which it updates and shares on a real-time basis.
11. In summary, during intake medical screenings, comprehensive health assessments or based on detainee complaints, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community hansmission in the past two weeks.
12. The detainee's responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees that present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be
referred to a local hospital.
13. In cases of known exposure to a person with confirmed COVID-I9, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposlre to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Those that show onset of fever and/or respiratory illness are referred to a medicai provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new
cases.
14. In the case of exposure to a person with fever or symptoms being evaluated or under investigation for COVID-19 but not confirmed, the process is the same except that cohorting is discontinued if the index patient receives an alternate diagnosis excluding COVID-19.
15. Field units have also been instructed to educate detainees to include the importance of
hand washing and hand hygiene, covering coughs with the elbow instead of with hands,
and requesting sick call if they feel ill.
16. Currently, IHSC has the following information for the NIPC:
o There are currently 3 detainees under isolation for fever andlor sSrmptoms plus
having epidemiologic risk. Their dates of isolation are as follow:
Page 2 of 4

Case 2:20-cv-00409-JLR-MAT Document 31 Filed 03/18/20 Page 3 of 4
o 0311612A20 (Not tested for COVID-l9 - The statement on this
detainee's medical record reveals that he has not traveled from a couatry with sustained community spread in the past and has not had contact with a known case in the past 2 weeks, which means that he does not meet the CDC criteria for testing at this time. The detainee is isolated in a single cell and is being monitored closely for clinical worsening of any signs/symptoms consistent with COVID-I9)
o 0311612020 (Tested for COVI}-l9 on 0311712020, results are pending) o 0311312020 (Tested for COVID-I9 on 031rc12}20; results negative for
covrD-1e)
. There are currently 2 detainees under monitoring for epidemiologic risk
without fever or symptoms. Monitoring started on:
o 0310612020 o 0310312020 . There were 2 additional asymptomatic/afebrile detainees under monitoring
that were previously released from monitoring after completion of the 14- day monitoring period. Monitoring started:
o 0310212A20 o 0lBAl2020 o There have been 2 dorms cohorted at the facility. These dorms are related to
the detainees with symptoms who have been tested.
o Housing Unit B2 74 detainees started 0311312020 o Housing Unit F4 72 detaitees started 0311612020
17. As of today, IHSC has not received any positive COVID-19 results from the NIPC or any of the rest of the IHSC staffed ICE facilities
---REST OF PAGE LEFT BLANK INTENTIONALLY--.
Page 3 of4

Case 2:20-cv-00409-JLR-MAT Document 31 Filed 03/18/20 Page 4 of 4 I declare, under penalty of pe{ury under 28 U.S.C. $ 1746, that the foregoing is true and
correct to the best of my knowledge, information and belief. DATED: March 18,2020
A DA I R IVE RA 3:[,JH;'J,:|J]"1"1',1'$I}
Dr. Ada Rivera
Deputy Assistant Director for clinical Services/IVledical Director
ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
Page 4 of 4

Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 1 of 20

1

The Honorable James L. Robart

2

The Honorable Mary Alice Theiler

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON 8

9

KARLENA DAWSON; ALFREDO ESPINOZA- Case No. 20-0409

10

ESPARZA; NORMA LOPEZ NUNEZ; MARJORIS RAMIREZ-OCHOA; MARIA

JLR-MAT

11

GONZALEZ-MENDOZA; JOE HLUPHEKA

BAYANA; LEONIDAS PLUTIN HERNANDEZ; RESPONDENTS-DEFENDANTS’

12

KELVIN MELGAR-ALAS; JESUS GONZALEZ RESPONSE IN OPPOSITION TO

HERRERA, 13

THE MOTION FOR A TEMPORARY RESTRAINING

14

Petitioners-Plaintiffs,

ORDER

15

v.

16

NATHALIE ASHER, Director of the Seattle Field

17

Office of U.S. Immigration and Customs

Enforcement; MATTHEW T. ALBENCE, Deputy

18

Director and Senior Official Performing the Duties

of the Director of the U.S. Immigration and

19

Customs Enforcement; U.S. IMMIGRATION AND

20

CUSTOMS ENFORCEMENT; STEPHEN LANGFORD, Warden, Tacoma Northwest ICE

21

Processing Center,

22

Respondents-Defendants.

23

24

25

26 COMES NOW the Federal Respondents, by and through their attorneys, Brian T.
27
Moran, United States Attorney for the Western District of Washington, and Michelle R. 28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
1

700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 2 of 20

1 Lambert, Assistant United States Attorney for said District, pursuant to the Court’s Order

2 Directing Service (ECF 17), and submit this Response to Plaintiffs-Petitioners’ Motion for a

3 Temporary Restraining Order.
4
5

INTRODUCTION

6

Neither Plaintiffs’ Complaint nor their Motion for a Temporary Restraining Order make

7 any specific allegations about any of the protocols U.S. Immigration and Customs Enforcement

8 (“ICE”) has implemented to protect those in its care and custody from the Coronavirus Disease
9 2019 (“COVID-2019”) or the conditions inside the Tacoma Northwest ICE Processing Center 10
(“NIPC”). Instead Plaintiffs claim a constitutional violation purportedly requiring their 11
immediate release from custody because: (1) they are elderly and/or suffer from medical 12
13 conditions that make them more susceptible to the virus; and (2) the detention center is located

14 near Seattle, where there have been a large number of confirmed COVID-19 cases.

15

Plaintiffs speculate “[i]t is highly likely…that COVID-19 will reach NIPC,” Compl. 8,

16 and their continued detention, under any circumstances, would be unconstitutional because they
17 are particularly vulnerable should they become infected. Plaintiffs ask this Court to hold that
18
19 detention of anyone at NIPC over age fifty or suffering from certain medical conditions is per

20 se unconstitutional. And, Plaintiffs ask the Court to order their immediate release from a

21 facility with no confirmed COVID-19 cases to a metropolitan area they describe as “the

22 epicenter of the largest COVID-19 outbreak in the United States, and one of the largest known
23 outbreaks in the world.” Pls. Mot. for TRO 3. The implications of such a holding would be
24 staggering. Under this theory, not just Plaintiffs, but accused criminals subject to pretrial
25 26 detention who enjoy broader constitutional protections than Plaintiffs would be constitutionally
27 entitled to release.

28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
2

700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 3 of 20

1

The Court should deny the TRO. First, Plaintiffs do not have a cognizable injury, much

2 less an irreparable one. Second, habeas relief is inappropriate for Plaintiffs’ conditions of
3 confinement claims, which must be brought under the Civil Rights Statute. Finally, because
4
Plaintiffs constitutional claims lack merit and because the balance of equities and public 5

6 interest tilt against granting a temporary restraining order, Defendants respectfully request the

7 Court deny Plaintiff’s motion.

8

FACTUAL BACKGROUND

9 NIPC is an ICE Health Service Corps (“IHSC”)-staffed facility that houses ICE
10 detainees. Decl. of Dr. Rivera at ¶ 2. IHSC provides direct medical, dental, and mental health
11
12 patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout

13 the nation. Id. ¶ 3. IHSC comprises a multidisciplinary workforce that consists of U.S. Public

14 Health Service Commissioned Corps (“USPHS”) officers, federal civil servants, and contract

15 health professionals. Id. ¶ 4.
16 Since the initial reports of COVID-19, ICE epidemiologists have been tracking the
17 outbreak, regularly updating infection prevention and control protocols, and issuing guidance to
18
19 IHSC staff for the screening and management of potential exposure among detainees. Id. ¶ 5.

20 Moreover, ICE has maintained a pandemic workforce protection plan since February 2014,

21 which was last updated in May 2017. This plan provides specific guidance for biological
22 threats such as COVID-19. ICE instituted applicable parts of the plan in January 2020 upon the 23
discovery of the potential threat of COVID-19. Id. ¶ 6. IHSC has also been in contact with 24
relevant offices within the Department of Homeland Security, and in January 2020, the DHS 25
26 Workforce Safety and Health Division provided DHS components additional guidance to

27

28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
3

700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 4 of 20

1 address assumed risks and interim workplace controls, including the use of N95 masks,
2 available respirators, and additional personal protective equipment. Id. ¶ 7. 3
As a precautionary measure, ICE has temporarily suspended social visitation in all 4
detention facilities. Id. ¶ 8. In testing for COVID-19, IHSC is also following guidance issued 5
6 by the Centers for Disease Control (“CDC”) to safeguard those in its custody and care. Id. ¶ 9.

7 HSC has issued recommendations to the field units at detention centers, which it updates and

8 shares on a real-time basis. Id. ¶ 10.
9 During intake medical screenings, routine comprehensive health assessments, or
10 screenings occasioned by detainee complaints, detainees are assessed for fever and respiratory
11 12 illness, are asked to confirm if they have had close contact with a person with confirmed
13 COVID-19 in the past 14 days, and whether they have traveled from or through areas with

14 sustained community transmission in the past two weeks. Id. ¶ 11. The detainee’s responses

15 and the results of these assessments will dictate whether to monitor or isolate the detainee.
16 Those detainees that present symptoms compatible with COVID-19 are placed in isolation,
17 where they are tested. If testing is positive, they will remain isolated and treated. In case of
18
19 any clinical deterioration, detainees will be referred to a local hospital. Id. ¶ 12.

20

In cases of known exposure to a person with confirmed COVID-19, asymptomatic

21 detainees are placed in cohorts with restricted movement for the duration of the most recent
22 incubation period (14 days after most recent exposure to an ill detainee) and are monitored 23
daily for fever and symptoms of respiratory illness. Those that show onset of fever and/or 24
respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued 25
26 when the 14-day incubation period completes with no new cases. Id. ¶ 13. In the case of

27 exposure to a person with fever or symptoms being evaluated or under investigation for

28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
4

700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 5 of 20

1 COVID-19 but not confirmed, the process is the same except that cohorting is discontinued if
2 the index patient receives an alternate diagnosis excluding COVID-19. Id. ¶ 14. 3
Field units have also been instructed to educate detainees to include the importance of 4
hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and 5
6 requesting sick call if they feel ill. Id. ¶ 15.

7

As of March 17, 2020, IHSC has cohorted two asymptomatic individuals based on their

8 travel history. Id. ¶16. Two additional asymptomatic individuals were cohorted due to travel
9 history or exposure to confirmed cases. Both were released after they completed the 14-fay
10 incubation period without presenting symptoms. Id. Three detainees with symptoms have also
11 12 been isolated, but none have tested positive for COVID-19. Id. In fact, as of today, IHSC has
13 not received any positive COVID-19 results from Tacoma NIPC or any IHSC-staffed facility

14 nationwide. Id. ¶ 17.

15

Plaintiffs are nine immigration detainees housed at NIPC who are elderly and/or have

16

various pre-existing medical conditions that require medical treatment.1 Compl. ¶¶ 41, et seq.

17

Plaintiffs allege that their many pre-existing conditions render them at increased risk for serious 18

19 illness or death if they contract COVID-19. Plaintiffs note that they receive treatment for all of

20

21

1 Among Plaintiffs is Melgar-Alas, a convicted drug distributor for the Mara Salvatrucha (“MS22 13”) gang. See, e.g., United States v. Melgar, et al., No. 10-50535 (9th Cir. 2011). Plaintiff

23 Lopez-Nunez who has been repeatedly convicted of unlawful entry, removed from the United States on multiple occasions under different identities, assisted others to violate the

24 immigration laws, and was the subject of a civil suit for defrauding the Social Security Administration. 1Indictment (ECF No. 9), United States v. Nunez-Lopez, No. 2:15-cr-01108 (D.
25 Ariz. 2015); Plea Agreement (ECF No. 30), United States v. Zanabria, 4:08-cr-01500-CKJ-

26

GEE (D. Ariz. 2008); Plea Agreement (ECF No. 34), United States v. Zanabria, No. 2:07-cr00380 (D. Ariz. 2007); Judgment (ECF No. 54), United States v. Lopez, No. 3:13-cr-00226

27 (S.D. Cal. 2013); Information (ECF No. 12), United States v. Lopez, 3:11-cr-01341 (S.D. Cal.

2011); Complaint, United States v. Zanabria, No. 2:08-cv-00142 (D. Ariz. 2008).

28 See also Wilcox Decl., ¶¶ 8-15 (providing Plaintiff histories).

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1 their pre-existing conditions while residing at NIPC. Compl. ¶¶ 41, et seq. Plaintiffs do not

2 allege any particularized deficiency in their medical treatment or in the conditions in which
3 they are housed. Id. Nor do Plaintiffs specify any failure of NIPC to respond to and take
4
appropriate measures to protect them from COVID-19. See id. 5

6

LEGAL STANDARD

7

The standard for issuing a temporary restraining order is “substantially identical” to the

8 standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,
9 240 F.3d 832, 839 n.7 (9th Cir. 2001). “It frequently is observed that a preliminary injunction is
10 an extraordinary and drastic remedy, one that should not be granted unless the movant, by a
11 12 clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
13 (1997) (emphasis in original) (internal quotations omitted); Winter v. Nat. Res. Def. Council,

14 Inc., 555 U.S. 7, 22 (2008). In moving for a temporary restraining order or a preliminary

15 injunction plaintiffs “must establish that [they are] likely to succeed on the merits, that [they

16 are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
17 equities tips in [their] favor, and that an injunction is in the public interest.” Id.
18

19

The Ninth Circuit has adopted a “sliding scale” test for issuing preliminary injunctions,

20 under which “serious questions going to the merits and a hardship balance that tips sharply

21 towards the plaintiff can support issuance of an injunction, assuming the other two elements of
22 the Winter test are also met.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 23
(9th Cir. 2011) (emphasis added). Thus, Plaintiffs must show that the injunction or TRO is in 24
the public interest and that there is a likelihood, not merely a possibility of irreparable injury. 25
26 See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

27

28

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1

However, “[w]here a party seeks mandatory preliminary relief that goes well beyond

2 maintaining the status quo pendente lite, courts should be extremely cautious about issuing a
3 preliminary injunction.” Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th
4 Cir. 1984); see also Committee of Cent. American Refugees v. Immigration & Naturalization
5

6 Service, 795 F.2d 1434, 1442 (9th Cir. 1986). For mandatory preliminary relief to be granted

7 Plaintiffs “must establish that the law and facts clearly favor [thei]r position.” Garcia v.

8 Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (emphasis in original).
9 ARGUMENT
10

11 I. Plaintiffs Lack Article III Standing

12

“Standing to sue is a doctrine rooted in the traditional understanding of a case or

13 controversy. The doctrine developed in our case law to ensure that federal courts do not exceed
14 their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
15

16 1547 (2016). The “irreducible constitutional minimum of standing” contains three

17 requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must

18 have suffered an “injury in fact”—an invasion of a legally protected interest which is (a)
19 concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” 20
Id. Second, the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, 21
and not . . . the result [of] the independent action of some third party not before the Court.” Id. 22
23 Third, it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed

24 by a favorable decision.” Id. at 560-61 (internal citations omitted). Plaintiffs do not raise a

25 cognizable injury, nor is the alleged injury redressable by this Court.
26 A. Plaintiffs Lack Injury in Fact
27

28

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1

Plaintiffs’ allege that, “Defendants’ ongoing detention of Plaintiffs violates the Due

2 Process Clause” under the Fifth Amendment because “they risk serious illness and death if
3 infected with COVID-19.” Compl. ¶¶ 84-85. Plaintiffs allege that because of their varied pre-
4
existing medical conditions, they bear an elevated risk of serious, adverse outcomes if they 5

6 contract COVID-19. However, Plaintiffs’ assertion that detention per se poses an increased

7 risk of health complications or death from COVID-19 is purely speculative. Moreover, ICE has

8 expended extensive resources and efforts to address the very issues that Plaintiffs have
9 identified. Rivera Decl. ¶¶ 5-17.
10 To establish injury in fact, a plaintiff must show that he or she suffered “‘an invasion of
11 12 a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
13 conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting

14 Lujan, 504 U.S. at 560. Injury in fact is a “constitutional requirement” and is the “[f ]irst and

15 foremost” of standing’s three elements. Id. at 1547-48 (quoting Steel Co. v. Citizens for Better
16 Environment, 523 U. S. 83, 103 (1998)). To be “particularized” the injury “must affect the
17 plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. “Particularization is
18
19 necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be

20 ‘concrete.’” Spokeo, Inc, 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it

21 must actually exist[,]” that is, it must be “real,” and not “abstract.” Id.

22

While “the risk of real harm” may, in some circumstances, be sufficiently concrete,

23 “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged
24

injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending,’” 25

26 Lujan, 504 U.S. at 568; see Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (“The

27 common definition of ‘imminent,’ however, does not refer only to events that are already

28

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1 taking place, but to those events ready to take place or hanging threateningly over one’s
2 head.”). 3
Plaintiffs’ alleged harm—that their detention increases their risk of COVID-19—is 4
speculative. Plaintiffs have not alleged that COVID-19 has spread to the NIPC facility. Even 5
6 assuming the “crowded conditions” Plaintiffs allege, crowding in and of itself does not cause

7 COVID-19 infection if none in the group has contracted COVID-19. See Decl. of Marc Stern

8 at ¶ 7 (Dkt. 6). Plaintiffs’ claims of future injury are hypothetical, and Plaintiffs are not entitled
9 to immediate release from detention based on a conjectural injury that they have not suffered.
10 An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot
11 12 be met where there is no showing of any real or immediate threat that the plaintiff will be
13 wronged [] -- a ‘likelihood of substantial and immediate irreparable injury.’” Los Angeles v.

14 Lyons, 461 U.S. 95, 111 (1983).

15

Moreover, even if COVID-19 were introduced to NIPC, Plaintiffs have not alleged—

16 nor could they allege—that Defendants are unprepared to respond to that contingency,
17 particularly in light of the known facts concerning ICE’s response to the challenges posed by
18

19 COVID-19. Rivera Decl. ¶¶5-17. Indeed, Plaintiffs’ Complaint demonstrates that Defendants

20 have provided Plaintiffs with fully-funded medical care and medication for a number of

21 different conditions, and have transported Plaintiffs to outside hospitals when circumstances
22 require. Compl. ¶¶41-65). 23
Any allegation that Defendants would inadequately attend to Plaintiffs’ medical needs 24
in the future, at no cost to Plaintiffs, is contradicted by the remainder of their Petition and by 25
26 their expert declaration. Notably, Andrew Lorenzen-Strait, who “oversaw [ICE’s] health and

27 welfare programs and services in immigration detention, including innovative programs to

28

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1 serve vulnerable populations” does not claim that the preventative measures, including health-
2 related “segregation,” are inadequate to prevent the spread of COVID-19. See Decl. of 3
Lorenzen-Strait (ECF No. 7) at ¶¶ 2, et seq. Plaintiffs cannot show, as they must, that there is a 4
“likelihood of substantial and immediate irreparable injury,” Los Angeles v. Lyons, 461 U.S. 5
6 95, 111 (1983), in light of the efforts ICE has made to contain and protect NIPC detainees from

7 COVID-19 and the lack of a single confirmed case of COVID-19 at the facility. Rivera Decl.

8 ¶17.; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (finding standing based

9 on fear, even one that is reasonable, “improperly waters down the fundamental requirements of
10 Article III.”).
11

12

B. Plaintiffs’ Alleged Injury—a Heightened Risk for Serious Consequences

from COVID-19—is not Redressable by Release

13

Plaintiffs’ alleged injury—that they are subject to a heightened risk of death or serious 14

15 illness if they contract COVID-19—will not be redressed by ordering their release.

16 “Redressability requires an analysis of whether the court has the power to right or to prevent

17 the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.).
18 For purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial 19
likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of 20
Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). 21 22 Plaintiffs’ desired relief—release from detention—will not ameliorate or diminish their claimed

23 heightened risk of injury or death resulting from COVID-19, nor can a court order requiring

24 release prevent Plaintiffs from contracting COVID-19.

25

Notably, Plaintiffs do not explain how release from NIPC, a facility without a single

26 confirmed case of COVID-19, into the greater Seattle area, the “epicenter” of America’s
27

COVID-19 crisis, will reduce their risk of injury or death. Pls. Mot. for TRO 3. IHSC provides 28

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1 medical care at no cost to detainees at NIPC, including Plaintiffs. By reason of their detention,
2 Plaintiffs have greater access to robust medical care than the general public. Ordering their 3
release from NIPC would leave Plaintiffs without their present access to health care would 4
arguably put Plaintiffs at greater risk of serious complications in the event that they contract 5
6 COVID-19.

7

II. Plaintiffs May not Challenge the Conditions of his Confinement Through a Habeas

8

Petition Seeking Immediate Release

9

Plaintiffs’ petition for habeas relief seeking immediate release is inappropriate in the

10 context of a conditions of confinement claim. “[T]he writ of habeas corpus is limited to attacks
11 upon the legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir.
12

13 1979). In Crawford, the Ninth Circuit held that “release from confinement” was not the

14 appropriate remedy to address the petitioner’s claims “alleg[ing] that the terms and conditions

15 of [petitioner’s] incarceration constitute[d] cruel and unusual punishment” and “violated his
16 due process rights.” Id. at 891-92. Such a claim must be brought as a civil rights claim, 17
Dohner v. Seifert, 5 F.3d 535 (9th Cir. 1993), that if proven, would be remedied by “a judicially 18 19 mandated change in conditions and/or an award of damages.” Crawford, 599 F.2d at 892.
20 Thus, because Plaintiffs do not assert any illegality or impermissible duration of confinement,

21 Plaintiffs’ petition for habeas relief seeking immediate release is inappropriate in the context of

22 their conditions of confinement claim. 23 24 III. Plaintiffs Do Not Satisfy the Requirements for Preliminary Relief

25

A. Plaintiffs are Unlikely to Succeed on the Merits

26

Likelihood of success on the merits is a threshold issue: “[W]hen ‘a plaintiff has failed

27 to show the likelihood of success on the merits, [the court] need not consider the remaining
28

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1 three [elements].’” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc)
2 (quoting Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th 3
Cir. 2013)) (internal quotation marks omitted). Plaintiffs’ constitutional claims are unlikely to 4
succeed on the merits. Though Plaintiffs fashion their complaint as a challenge to their 5
6 “conditions of confinement,” Plaintiffs do not allege any concrete deficiency in the manner in

7 which they are confined. Rather, Plaintiffs allege that any confinement of an individual more

8 susceptible to COVID-19 due to age or medical affliction violates the Constitution. Plaintiffs in

9 effect invite the Court to recognize a due process right to immediate, discretionary release.
10 Plaintiffs have no such due process right.
11

12

1. Denial of Discretionary Relief to which Plaintiffs Lack a Legitimate

Claim of Entitlement Does not Violate Due Process.

13

Plaintiffs’ prayer for relief makes clear that this litigation has nothing to do with the 14

15 conditions of Plaintiffs’ confinement. Compl. at 19-20. It does not request a single

16 improvement to their conditions of confinement. Id. As Plaintiffs acknowledge, they essentially

17 seek—and claim a due process interest in—an exercise of “discretion to release.” Compl.

18 ¶¶74-75. Therefore, the question is whether Plaintiffs have a due process right to a
19 discretionary grant of parole for “urgent humanitarian reasons or significant public benefit”
20 under 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b), 235.3. Compl. ¶74. Plaintiffs
21 22 do not have such a right.2

23

As a threshold matter this Court is without jurisdiction to review Defendants’ decision

24 to grant or deny parole. Title 8 U.S.C. § 1182(d)(5) grants the Attorney General discretion to 25

26 2 Plaintiffs make no effort to distinguish between aliens detained under 8 U.S.C. § 1226(c) and
27 1231, which mandate detention and others detained under 1225 and 1226(a) for whom discretionary release is available. Congress has expressly prohibited release for individuals
28 detained under 8 U.S.C. § 1226(c) or 1231.

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1 “parole [aliens] into the United States temporarily under such conditions as he may prescribe.”
2 Because the authority for the parole decision is specified to “be in the discretion of the Attorney 3
General,” 8 U.S.C. § 1252(a)(2)(B)(ii) strips all courts of jurisdiction to review it. 4
Moreover, to claim a due process interest, Plaintiffs must first allege a legitimate claim 5
6 of entitlement to a liberty or property interest. Where the benefit sought is discretionary, there

7 can be no due process claim to it. At issue in this case is Plaintiffs’ claim of a liberty interest in

8 a discretionary grant of humanitarian parole. Mot. for TRO 15-17. Title 8 U.S.C. §

9

1182(d)(5)(A) provides that the Attorney General3 may “in his discretion parole into the United

10
States temporarily under such conditions as he may prescribe only on a case-by-case basis for 11

12 urgent humanitarian reasons or significant public benefit any alien applying for admission…” 8

13 U.S.C. § 1182(d)(5)(A). The Supreme Court has made clear that “a benefit is not a protected

14 entitlement if government officials may grant or deny it in their discretion.” Town of Castle

15 Rock v. Gonzales, 545 U.S. 748, 756 (2005); see also Appiah v. United States INS, 202 F.3d

16 704, 709 (4th Cir. 2000) (“Because suspension of deportation is discretionary, it does not create
17 a protectable liberty or property interest.”).
18

19

The Ninth Circuit has already determined that parole under § 1182(d)(5)(A) is

20 discretionary, and “[could] discern no substantive liberty or property interest… in temporary

21 parole status[.]” Kwai Fun Wong v. United States INS, 373 F.3d 952, 968 (9th Cir. 2004). For
22 that reason, the Ninth Circuit concluded “there is no statutorily created protected interest in 23

24

25 3 On March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist as an

26

independent agency within the Department of Justice, and its functions were transferred to the newly formed Department of Homeland Security (“DHS”). See Homeland Security Act of

27 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). The INS was

divided into three separate agencies, ICE, Customs and Border Protection (“CBP”), and

28 Citizenship and Immigration Services (“USCIS”).

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1 parole.” Wong, 373 F.3d at 968 (“The INA does not create any liberty interest in temporary
2 parole that is protected by the Fifth Amendment. Rather, the statute makes clear that whether 3
and for how long temporary parole is granted are matters entirely within the discretion of the 4
[Secretary of Homeland Security].”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) 5
6 (“Since discretionary relief is a privilege created by Congress, denial of such relief cannot

7 violate a substantive interest protected by the Due Process Clause.”); Regents II, 298 F. Supp.

8 3d at 1310 (“Our court of appeals has accordingly held there is no protected interest in
9 temporary parole, since such relief is ‘entirely within the discretion of the [Secretary of
10 Homeland Security].’ . . . [This] foreclose[s] any argument that plaintiffs have a protected
11 12 interest in . . . advance parole[.]”) (citing Wong, 373 F.3d at 967-68). “The INA does not create
13 any liberty interest in temporary parole that is protected by the Fifth Amendment.” Kwai Fun

14 Wong v. United States INS, 373 F.3d 952, 968 (9th Cir. 2004). Accordingly, because Plaintiffs

15 have no liberty interest to assert with regard to discretionary parole, they can state no claim for

16 release.
17

18

2. Plaintiffs Cannot be Substantially Likely to Prevail on the Merits Where they Fail to Address an Essential Element of their

19

Constitutional Claim—Deliberate Indifference

20

The Supreme Court held in Helling v. McKinney, 509 U.S. 25 (1993), that Eighth

21 Amendment claims have a subjective and an objective component. Id. at 35. The objective
22 component requires “more than a scientific and statistical inquiry into the seriousness of the
23 potential harm and the likelihood that such injury to health will actually be caused” by the
24 25 allegedly unconstitutional conduct. Id. at 36. “It also requires a court to assess whether society
26 considers the risk that the prisoner complains of to be so grave that it violates contemporary

27 standards of decency to expose anyone unwillingly to such a risk.” Id. Regarding the

28

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1 subjective element, the Court held that while “accidental or inadvertent failure to provide
2 adequate medical care to a prisoner would not violate the Eighth Amendment, ‘deliberate 3
indifference to serious medical needs of prisoners’ violates the Amendment because it 4
constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of 5
6 decency.” Id. at 32 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

7

Plaintiffs, relying on Helling, contend that their allegation of potential medical

8 complications should they be exposed to COVID-19 satisfies the objective element of their due
9 process claim. Pls. Mot. for TRO 14. However, Helling is clearly distinguishable. Without
10 deciding the merits of the case, the Court held that a prisoner whose cellmate had a five-pack-a-
11 12 day cigarette habit had standing to bring an Eight Amendment claim challenging an existing
13 “condition of confinement that is sure or very likely to cause serious illness and needless

14 suffering.” Helling, 509 U.S. at 33, 35. Thus, standing was premised on the prisoner’s actual

15 exposure to smoke, not the facility’s location in an area with a high incidence of heavy smokers
16 and the speculative likelihood that one of those smokers would one day share a cell with the
17 petitioner, adversely impacting his health. Plaintiffs would have this Court find the latter
18
19 cognizable. The other cases cited by Plaintiff are distinguishable for the same reason. Each

20 addressed the petitioner’s exposure to existing conditions that created a risk of future harm.

21 See, e.g., Hutto v. Finney, 437 U.S. 678 (1978) (mingling of inmates with inmates with
22 infectious diseases with others); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) (same). At 23
base, Plaintiffs do not allege that they are exposed to COVID-19 in NIPC. 24
More importantly, Plaintiffs do not even address or argue that the Government has acted 25
26 with deliberate indifference. Nor could they. ICE has gone to great lengths to implement

27 procedures and protocols to protect its staff and the detainees in their care, including at NIPC.

28

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1 They have set up screening procedures to identify and isolate potentially infected individuals,
2 in accordance with CDC guidance, to avoid the mingling of infected with uninfected inmates at 3
issue in Hutto and Gates. Rivera Decl. ¶¶11-14. They have provided staff with guidance on the 4
use of personal protective equipment including N95 masks and available respirators. Id. ¶7. 5
6 The lack of any confirmed COVID-19 cases at any IHSC-staffed facility nationwide, including

7 NIPC underscores the effectiveness and care the Government has taken to protect vulnerable

8 detainees. Id. ¶17.

9 3. Even Applying the Standard Urged by Plaintiffs, their Due Process

10

Claim fails Because their Detention is Related to a Legitimate

Government Interest 11

12

The Ninth Circuit has made clear that the deliberate indifference requirement extends

13 beyond Eighth Amendment claims to conditions of confinement claims brought under the Due

14 Process Clause by pretrial detainees who enjoy a presumption of innocence, describing
15 deliberate indifference as “akin to reckless disregard.” Castro v. County of Los Angeles, 833 16
F.3d 1060, 1068-71 (9th Cir. 2016); see also Gordon v. County of Orange, 888 F.3d 1018 (9th 17 18 Cir. 2018). Rather than address deliberate indifference, Plaintiffs argue that individuals in civil
19 detention, including those in immigration detention, enjoy broader constitutional protections

20 than criminal detainees, therefore there is no need to show deliberate indifference. Pls.’ Mot.

21 for TRO 13.
22 Plaintiffs cite to the Ninth Circuit’s decision in Jones v. Blanas, 393 F.3d 918 (9th Cir.
23 2004), for the proposition that the Constitution entitles them “to conditions of confinement that
24 25 are superior to those of convicted prisoners.” Pls.’ Mot. for TRO 14. First, Plaintiffs disregard
26 decades of Supreme Court precedent finding that immigration detainees enjoy fewer

27 constitutional protections than the civilly detained U.S. citizen in Jones. See, e.g., Mathews v.

28

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1 Diaz, 426 U.S. 67, 79–80 (1976) (“In the exercise of its broad power over naturalization and
2 immigration, Congress regularly makes rules that would be unacceptable if applied to 3
citizens.”); Demore v. Kim, 538 U.S. 510, 521 (2003); Reno v. Flores, 507 U.S. 292, 305–306 4
(1993); Fiallo v. Bell, 430 U.S. 787, 792 (1977); United States v. Verdugo–Urquidez, 494 U.S. 5
6 259, 273 (1990).

7

Second, even applying the standard proposed by Plaintiffs, they still fail to raise a

8 colorable constitutional claim. Jones held that “an individual detained under civil
9 processs…cannot be subjected to conditions that amount to punishment.” Jones, 393 F.3d at
10 932. Jones holds that civil confinement is presumptively punitive, and therefore
11 12 unconstitutional if the conditions are “identical to, similar to, or more restrictive than, those in
13 which his criminal counterparts are held.” Id. at 932. If the presumption applies, the burden

14 shifts to the defendant to show “legitimate, non-punitive interests justifying the conditions of

15 [the detainee’s] confinement” and “that the restrictions imposed ... [are] not ‘excessive’ in
16 relation to these interests.” Id. at 935. In the immigration context, the Supreme Court has
17 consistently upheld the constitutionality of detention, citing the Government’s legitimate
18
19 interest in protecting the public and preventing aliens from absconding into the United States

20 and never appearing for their removal proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830,

21 836 (2018); Demore, 538 U.S. at 520-22; Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001).

22 Nor is detention pending removal an “excessive” means of achieving those interests. The
23 Supreme Court for over a century has affirmed detention as a “constitutionally valid aspect of
24 the deportation process.” Demore, 538 U.S. at 523 (listing cases).
25

26

B. Plaintiffs have not Shown Irreparable Harm

27

28

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1

The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking

2 preliminary relief to demonstrate that irreparable injury is likely in the absence of an
3 injunction.” Winter, 555 U.S. at 22 (emphasis in original). “Issuing a preliminary injunction
4
based only on a possibility of irreparable harm is inconsistent with our characterization of 5

6 injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing

7 that the plaintiff is entitled to such relief.” Id. Conclusory or speculative allegations are not

8 enough to establish a likelihood of irreparable harm. Herb Reed Enters., LLC v. Florida Entm’t
9 Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013); see also Caribbean Marine Servs. Co. v.
10 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable
11 12 injury sufficient to warrant granting a preliminary injunction.”); Am. Passage Media Corp. v.
13 Cass Commc’ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (finding irreparable harm not

14 established by statements that “are conclusory and without sufficient support in facts”).

15

As stated above, Plaintiffs allege that only release from NIPC into Seattle, the epicenter

16 of the American COVID-19 crisis, will spare them the heightened risk of adverse consequences
17 from COVID-19 due to their pre-existing conditions. This is not only speculative, but it is
18

19 unlikely. Plaintiffs do not explain how they will suffer irreparable harm in the absence of an

20 order requiring their release, given that Plaintiffs’ existing medical care would be interrupted if

21 not ended as a consequence of their release. If Plaintiffs continue to receive adequate medical

22 care and shelter from COVID-19 in immigration detention, their harm is non-existent much less

23 irreparable.
24

25

C. The Balance of Interests and Public Interest Favor Respondents

26

It is well-settled that the public interest in enforcement of United States immigration

27 laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s

28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
18

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Case 2:20-cv-00409-JLR-MAT Document 28 Filed 03/18/20 Page 19 of 20

1 House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has
2 recognized that the public interest in enforcement of the immigration laws is significant.”); see 3
also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt 4
execution of removal orders: The continued presence of an alien lawfully deemed removable 5
6 undermines the streamlined removal proceedings IIRIRA established, and permit[s] and

7 prolong[s] a continuing violation of United States law.” (internal marks omitted)).

8

Plaintiffs ask the Court to order Defendants to declare unconstitutional the detention of

9 “all people over fifty years old and [all] persons of any age with underlying medical
10 conditions[.]” Compl. at 20.4 Given the vast expanse and indiscriminate nature of Plaintiffs’
11
12 requested order, the balance of interests clearly favors Defendants. The disruptive effect of

13 such an order would long survive the COVID-19 pandemic, and would serve to release many

14 criminal aliens slated for removal back into the general public. Moreover, the public interest is

15 best served by allowing the orderly medical processes and protocols implemented by
16 government professionals. See Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982) (urging
17 judicial deference and finding presumption of validity regarding decisions of medical
18
19 professionals concerning conditions of confinement). This type of burden and attendant harm,

20 and its potential impact on ICE operations nationwide, is too great to be permissible at this

21 preliminary stage.

22

Because Plaintiffs cannot show that the balance of hardships and public interest tips in

23 their favor, the Court should deny Plaintiffs’ request for preliminary relief.
24

25

26 4 Considering that ICE detains many individuals that fall into this sweeping category and
27 provides for their medical care, the Court should consider carefully what effect such a release order would impose on the public at a time when states are struggling to provide healthcare
28 resources to address the COVID-19 pandemic.

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
19

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1

CONCLUSION

2

Because Plaintiffs lack standing, have improperly brought their conditions of

3 confinement claims in a habeas petition and cannot satisfy the requirements for preliminary
4

relief, Defendants respectfully request the Court deny Plaintiffs’ Motion for a Temporary 5

6 Restraining Order.

7 DATED this 18th day of March, 2020.
8

9 Respectfully submitted,

10

BRIAN T. MORAN

11

United States Attorney

12

13

/s/ Michelle R. Lambert

MICHELLE R. LAMBERT NY#4666657

14

Assistant United States Attorney

1201 Pacific Avenue, Suite 700

15

Tacoma, WA 98402

16

Telephone No. (253) 428-3824

E-mail michelle.lambert@usdoj.gov

17

DAVID J. BYERLEY

18

KEVIN C. HIRST

19

Trial Attorneys

U.S. Department of Justice, Civil Division

20

Office of Immigration Litigation

District Court Section 21

22

Attorneys for Government

23

24

25

26

27

28

Respondents-Defendants’ Response to Pls.’ Mot. for a Temporary Restraining Order Case No. 2:20-cv-00409-JLR-MAT
20

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1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 KARLENA DAWSON, et al.,

CASE NO. C20-0409JLR-MAT

10

Petitioner-Plaintiffs,

ORDER DENYING

11 v.

PETITIONERS’ SECOND MOTION FOR A

12 NATHALIE ASHER, et al.,

TEMPORARY RESTRAINING ORDER

13 Respondent-Defendants.

14 I. INTRODUCTION

15 Before the court are (1) Petitioner-Plaintiffs Karlena Dawson, Norma Lopez

16 Nunez, Marjoris Ramirez-Ochoa, Maria Gonzalez-Mendoza, Joe Hlupheka Bayana,

17 Kelvin Melgar-Alas, Jesus Gonzalez Herrera, Alfredo Espinoza-Esparza, and Leonidas
18 Plutin Hernandez’s (collectively, “Petitioners”) second motion for a temporary
19 restraining order (“TRO”) (2d TRO Mot. (Dkt. # 36)) and (2) Petitioners’ response to the
20 court’s order to show cause regarding standing (Pet. OSC Resp. (Dkt. # 46); see also
21 OSC (Dkt. # 34)).

22

ORDER - 1

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1

Respondent-Defendants Nathalie Asher, Matthew T. Albence, Steven Langford,

2 and United States Immigration and Customs Enforcement’s (“ICE”) (collectively,

3 “Respondents”1) oppose Petitioners’ second TRO motion (2d TRO Resp. (Dkt. # 64))

4 and filed a reply regarding the issue of Petitioners’ Article III standing (Res. OSC Resp.

5 (Dkt. # 63)). The court has reviewed Petitioners’ motion and the parties’ submissions

6 related to that motion and the court’s order to show cause, the relevant portions of the

7 record, and the applicable law. Being fully advised,2 the court (1) concludes that

8 Petitioners have Article III standing; (2) concludes that the court has jurisdiction to

9 adjudicate Petitioners’ Fifth Amendment claim under the habeas statute, 28 U.S.C.

10 § 2241; and (3) DENIES Petitioners’second motion for a TRO.

11

II. BACKGROUND

12 A. Procedural Background

13

On March 16, 2020, Petitioners filed their petition-complaint, seeking a writ of

14 habeas corpus, or in the alternative, injunctive relief, against Respondents. (See Pet. at

15 20.) Petitioners represent that they are “particularly vulnerable to serious illness or death

16 if infected by COVID-19” due to their age and/or medical conditions. (See id. ¶¶ 39-66.)

17 //

18 //

19

1 Petitioners’ filing is a “petition for writ of habeas corpus . . . and complaint for

injunctive relief.” (See Pet. (Dkt. # 1) at 1.) Because the court concludes that it has jurisdiction

20 to review Plaintiffs’ Fifth Amendment claim under 28 U.S.C. § 2241, see infra § III.D, the court now refers to petitioner-plaintiffs as “Petitioners” and respondent-defendants as “Respondents.”

21

2 Neither party requests oral argument (see 2d TRO Mot. at 1; 2d TRO Resp. at 1), and

22

the court finds oral argument unnecessary to its disposition of the motion, see Local Rules LCR 7(b)(4); LCR 65(b)(3).

ORDER - 2

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 3 of 30

1

On the same day, Petitioners filed their first TRO motion seeking “immediate

2 release” from detention as they awaited adjudication of their immigration cases. (See 1st

3 TRO Mot. (Dkt. # 2) at 7.) Petitioners argued that “[t]he conditions of immigration

4 detention facilities pose a heightened public health risk for the spread of COVID-19”

5 because of “crowding, the proportion of vulnerable people detained, and often scant

6 medical care resources,” in addition to the inability to achieve the social distancing

7 needed to effectively prevent the spread of COVID-19. (See id.) Petitioners contended

8 that their continued detention in the face of the COVID-19 pandemic violated their Fifth

9 Amendment right to reasonable safety while in custody. (See id. at 12.) Respondents

10 opposed the motion and argued that Petitioners’ lack Article III standing and that the

11 court lacked jurisdiction to hear Petitioners’ claim in the form of a habeas petition. (See

12 1st TRO Resp. (Dkt. # 28) at 7-11.)

13

On March 19, 2020, the court denied Petitioners’ first TRO motion because

14 Petitioners had not shown a likelihood of success on the merits or a likelihood of

15 irreparable harm. (See 3/19/20 Order (Dkt. # 33) at 4-6.) The following day, the court

16 ordered Petitioners to respond to Respondents’ arguments regarding Article III standing.

17 (See OSC at 2.) On the same day, Petitioners requested a status conference and sought

18 expedited discovery from Respondents. (See Discovery Request (Dkt. # 35).)

19

On March 24, 2020, Petitioners filed their second TRO motion, and on March 25,

20 2020, they filed their response to the court’s order to show cause. (See 2d TRO Mot.; see

21 Pet. OSC Resp.) Petitioners’ second TRO motion is premised on the following

22 developments: (1) the Ninth Circuit Court of Appeals’ March 23, 2020, sua sponte order

ORDER - 3

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1 releasing an individual from immigration detention “[i]n light of the rapidly escalating

2 public health crisis, which public health authorities predict will especially impact

3 immigration detention centers” (see 2d TRO Mot. at 2 (quoting Xochihua-Jaimes v. Barr,

4 No. 18-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020)));3 (2) other federal

5 court orders releasing individuals “on bail or delay[ing] their imprisonment in light of the

6 COVID-19 crisis” (see id. at 2); (3) a letter from “two doctors who serve as subject

7 matter experts for the Department of Homeland Security” warning of “tinderbox”

8 conditions at detention centers (see id. at 2-3 (citing Ngo Decl. (Dkt. # 37) ¶ 4, Ex. A

9 (“Allen-Rich Ltr.”) at 4); and (4) the fact that individuals have tested positive for

10 COVID-19 “at other immigration detention facilities in the United States” (see id. at 3).

11

After filing their second TRO motion, Petitioners filed notices of supplemental

12 authority informing this court of several orders in other districts granting TROs on the

13 basis of conditions at detention facilities that increase the risk of contracting COVID-19.

14 (See 1st Pet. Not. of Supp. Auth. (Dkt. # 56) ¶ 1 (citing Basank v. Decker, No. 20 CIV.

15 2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)); ¶ 2 (citing Coronel v. Decker,

16 --- F. Supp. 3d ---, 2020 WL 1487274, at *10 (S.D.N.Y. Mar. 27, 2020)); 2d Pet. Not. of

17 Supp. Auth. (Dkt. # 61) at 1 (citing Castillo et al. v. Barr et al., --- F. Supp. 3d ----, 2020

18 WL 1502864 (C.D. Cal. Mar. 27, 2020)); 3d Pet. Not. of Supp. Auth. (Dkt. # 71) at 1

19 //

20 3 The Ninth Circuit’s order was initially marked for publication, but subsequently the

21

Ninth Circuit entered an order stating that the “for publication” designation was a clerical error and removed it. Xochihua-Jaimes, No. 18-71460, Dkt. # 54 (9th Cir. Mar. 24, 2020). Moreover,

22

the order does not set forth its analysis in a manner that allows this court to apply it to Petitioners’ case.

ORDER - 4

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1 (citing Thakker et al. v. Doll et al., No. 1:20-CV-480, 2020 WL 1671563, at *1 (M.D. Pa.

2 Mar. 31, 2020)).) Respondents also filed a notice of supplemental authority, citing cases

3 in which courts in this district denied motions for TROs to release immigration detainees

4 on Fifth Amendment grounds. (See Resp. Not. of Supp. Auth. (Dkt. # 85) at 1-2 (citing

5 Almeida v. Barr, No. C20-490RSM-BAT, Dkt. # 11 (W.D. Wash. Apr. 6, 2020); Patel v.

6 Barr, C20-488RSM-BAT, Dkt. # 9 (W.D. Wash. Apr. 2, 2020)).)

7

On March 31, 2020, in a separate but related development, the Ninth Circuit

8 transferred to this district several emergency motions for release from the Tacoma

9 Northwest Detention Center (“NWDC”) due to the COVID-19 pandemic and construed

10 the motions as petitions for habeas corpus under 28 U.S.C. § 2241. See, e.g., Almeida,

11 No. C20-490RSM-BAT, Almeida Transfer Order (Dkt. # 1-1) at 2 (W.D. Wash. Mar. 31,

12 2020); Patel, No. C20-0488RSM-BAT, Patel Transfer Order (Dkt. # 1-1) at 2 (W.D.

13 Wash. Mar. 31, 2020); Pablo v. Barr, No. C20-489RSM-BAT, Pablo Transfer Order

14 (Dkt. # 1-1) at 2 (W.D. Wash. Mar. 31, 2020).4

15 B. Petitioners and Their Detention Status

16

Petitioners are five individuals who ICE is currently holding in civil detention at

17 the NWDC in Tacoma, Washington and four who ICE has released.5 (See Pet. ¶¶ 39-66.)

18 4 The petitioner in Pablo voluntarily dismissed his case on April 3, 2020. See Pablo, No.
19 C20-489RSM-BAT, Not of Vol. Dismissal (Dkt. # 10) at 1 (W.D. Wash. Apr. 3, 2020).

20

5 On March 27, 2020, Petitioners notified the court that Mr. Espinoza-Esparza and Mr.

Hernandez were released from detention. (See 1st Not. of Release (Dkt. # 57) at 1.) On March

21

30, 2020, Respondents notified the court that ICE has released Ms. Dawson from immigration custody on an order of supervised release. (See 2d Not. of Release (Dkt. # 70) at 1.) On April 7,

22

2020, Respondents notified the court that ICE has released Ms. Gonzalez-Mendoza. (See 3d Not. of Release (Dkt. # 88) at 1.)

ORDER - 5

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1

Ms. Ramirez-Ochoa is 43 years old and a citizen of Cuba who suffers from high

2 blood pressure, chronic kidney disease, epilepsy, and respiratory problems. (See

3 Ramirez-Ochoa Decl. (Dkt. # 9) ¶¶ 1-2, 5-7, 9.) Ms. Ramirez-Ochoa has several

4 convictions for shoplifting, petit theft, and a 2016 conviction for theft in the third degree.

5 (See 1st Bostock Decl. (Dkt. # 66) ¶ 36.) On April 3, 2019, Ms. Ramirez-Ochoa was

6 convicted of felony robbery in the second degree, an offense that involved the use of a

7 firearm. (See id.) She was sentenced to six months and placed into ICE custody on April

8 4, 2019. (See id.) On March 5, 2020, an immigration judge ordered Ms. Ramirez-Ochoa

9 removed to Cuba. (See id.)

10

Mr. Bayana is 57 years old and a citizen of Zimbabwe who has type II diabetes

11 and takes medication for seizures. (1st Bayana Decl. (Dkt. # 13) ¶¶ 1, 3-4.) Respondents

12 believe his real name is Mketwa Phiri and that Joe Hlupheka Bayana is a false name that

13 Mr. Bayana has used on a fraudulently obtained South African passport, which Mr.

14 Bayana presented to an immigration judge to obtain bond on May 16, 2002. (See 1st

15 Bostock Decl. ¶ 38.) After accepting an order of voluntary departure to South Africa,

16 Mr. Bayana failed to depart voluntarily and subsequently failed to report for removal

17 twice. (See id.) Mr. Bayana has been arrested approximately 22 times for charges that

18 include trespassing, larceny, drugs, assault, and harassing communications. (See id.) Mr.

19 Bayana was an immigration fugitive from August 30, 2012, until April 5, 2018. (See id.)

20 After applying for work authorization, ICE took Mr. Bayana into custody on October 17,

21 2018. (See id.) The South African government subsequently notified ICE and provided

22 //

ORDER - 6

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 7 of 30

1 documentation confirming that the real Joe Hlupheka Bayana was deceased, establishing

2 that Joe Hlupheka Bayana is not Mr. Bayana’s real name. (See id.)

3

Mr. Melgar-Alas is 40 years old and a citizen of El Salvador who has been in a

4 wheelchair since a September 27, 2015, shooting that resulted in a spinal cord injury.

5 (See Melgar-Alas Decl. (Dkt. # 15) ¶¶ 1, 4.) Mr. Melgar-Alas has a colonoscopy bag and

6 “has to catheterized (sic) up to five times each day.” (Id. ¶ 6.) Since first being detained

7 at the NWDC in July 2018, he has been hospitalized five times, “including multiple times

8 for probable pneumonia.” (Id. ¶ 7.) Mr. Melgar-Alas has convictions for distribution of

9 methamphetamine and was convicted in 2013 of a RICO offense for his membership and

10 participation in the Mara Salvatrutcha gang, also known as MS-13. (See 1st Bostock

11 Decl. ¶ 40.) He was sentenced to 27 months in prison and released to ICE on July 18,

12 2018. (See id.) On February 6, 2020, an immigration judge denied Mr. Melgar-Alas

13 bond, finding him to be both a danger and a flight risk. (See id.)

14

Mr. Herrera is 46 years old and suffers from diabetes and high blood pressure.

15 (See Herrera Decl. (Dkt. # 16) ¶¶ 1, 5.) He came into ICE custody following a conviction

16 on July 22, 2019, for burglary. (See 1st Bostock Decl. ¶ 41.)

17

Ms. Lopez Nunez is a 65 year old citizen of Mexico who suffers from

18 hypertension, heart disease, and mental health issues. (See Maltese Decl. (Dkt. # 8) ¶ 9,

19 Ex. C.) She has multiple prior removals and approximately five prior convictions for

20 illegal re-entry. (See 1st Bostock Decl. ¶ 35.) Ms. Lopez Nunez was transferred to the

21 NWDC on April 28, 2017. She has been denied bond multiple times after being found to

22 be a flight risk. (See id.)

ORDER - 7

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1 C. Conditions at the NWDC

2

The parties rely on a series of declarations in support of and in opposition to

3 Petitioners’ second motion for a TRO. Petitioners rely primarily on (1) the individual

4 declarations of Petitioners and other current and former NWDC detainees6 (see

5 Ramirez-Ochoa Decl.; Gonzalez-Mendoza Decl. (Dkt. # 11); Bayana Decl.; Melgar-Alas

6 Decl.; Herrera Decl.; Maltese Decl.; Dawson Decl. (Dkt. # 78); Espinoza-Esparza Decl.

7 (Dkt. # 79); Lopez Gonzalez Decl. (Dkt. # 80); Hernandez Decl. (Dkt. # 82); Lopez

8 Nunez Decl. (Dkt. # 81)), and (2) declarations from a series of subject matter experts who

9 opine on the COVID-19 pandemic and the conditions at detention centers generally (see,

10 e.g., Allen-Rich Ltr.; Rekart Decl. (Dkt. # 41); Gonza Decl. (Dkt. # 42)). Respondents

11 rely primarily on the declarations declarations of (1) Drew H. Bostock, the Officer in

12 Charge (“OIC”) with DHS, ICE, Enforcement and Removal Operations (“ERO”) in the

13 Seattle Field Office (“ERO Seattle”) (1st Bostock Decl.; 2d Bostock Decl. (Dkt. # 76); 3d

14 Bostock Decl. (Dkt. # 84)), (2) NWDC Facility Administrator Stephen Langford (1st

15 Langford Decl. (Dkt. # 68); 2d Langford Decl. (Dkt. # 74)), and (3) Clinical Director for

16 the ICE Health Services Corps (“IHSC”) Sheri Malakhova (1st Malakhova Decl. (Dkt.

17 # 75); 2d Malakhova Decl. (Dkt. # 86)).

18

The NWDC is a private detention center run by The GEO Group, Inc. (“GEO”).

19 (1st Bostock Decl. ¶ 4.) It has the capacity to house 1,575 detainees and historically

20

21

6 On April 1, 2020, the court ordered Respondents to file additional evidence regarding

the conditions at the NWDC and the measures Respondents are taking to prevent the spread of

22

COVID-19 and allowed Petitioners to file additional evidence if they wished to do so. (See 4/1/2020 Order (Dkt. # 73) at 2-5.)

ORDER - 8

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1 operates near capacity. (Id. ¶ 6.) However, as of April 3, 2020, the NWDC has only 794

2 detainees, which represents only 50.4% of its typical number of detainees. (2d Bostock

3 Decl. ¶ 29.) Between March 1, 2020, and April 2, 2020, 407 detainees arrived at the

4 NWDC and 399 detainees departed. (Id. ¶ 27.) One hundred and thirty-eight of the

5 detainees who arrived at the NWDC during that span arrived on March 1, 2020, and most

6 of those detainees were transferred from the southern border. (Id. ¶ 27 n.3.) However,

7 ICE last transferred detainees from the southern border to the NWDC on March 5, 2020,

8 and does not anticipate any additional transfers from that area in the reasonably

9 foreseeable future. (1st Bostock Decl. ¶ 7.)

10

On March 18, 2020, ICE announced that due to the ongoing COVID-19 pandemic,

11 it would adjust enforcement to focus on public safety risks and individuals subject to

12 mandatory detention based on criminal grounds. (Id. ¶ 8.) For individuals who do not

13 fall within these categories, ICE is currently exercising its discretion to delay

14 enforcement actions until after the COVID-19 crisis or to use alternatives to detention,

15 where appropriate. (Id.) Due to this change, ICE expects only a limited number of

16 incoming detainees at the NWDC during the COVID-19 crisis—the majority of whom

17 will be aliens who represent public safety risks and are subject to mandatory custody

18 provisions. (Id. ¶ 9.)

19

As a response to the COVID-19 crisis, IHSC, which oversees medical care at the

20 NWDC, implemented certain safety protocols. (Id. ¶ 11.) On March 26, 2020, IHSC

21 implemented temperature and prescreening checks for all new detainees arriving at the

22 NWDC prior to entrance into the facility. (Id.; 1st Malakohva Decl. ¶¶ 2-28.) Regular

ORDER - 9

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 10 of 30

1 procedures at the NWDC require that all incoming detainees’ personal property and

2 valuable are inventoried and stored. (1st Bostock Decl. ¶ 12.) Further, all incoming

3 detainees are afforded the opportunity to shower and given clean clothing, bedding,

4 towels, and personal hygiene items. (Id.) OIC Bostock testifies that GEO provides all

5 detainees with an instructional flyer outlining proper hand washing hygiene and the

6 importance of covering coughs, and that in response to the COVID-19 pandemic,

7 additional posters in multiple languages concerning hand washing hygiene and covering

8 coughs have been placed in each housing unit at the NWDC. (Id. ¶ 13.)

9

As of March 20, 2020, all incoming detainees who do not meet current IHSC

10 protocol requirements for isolation monitoring due to possible COVID-19 symptoms,

11 exposure, or testing, are placed in three separate housing units for 14 days of monitoring

12 for signs or symptoms of COVID-19. (Id. ¶ 14; 2d Bostock Decl. ¶ 23.) Detainees in the

13 14-day observation period are not allowed to commingle with other detainees in common

14 areas during the 14-day period. (1st Bostock Decl. ¶ 14.) Detainees admitted on the

15 same date and who are determined to be at the same risk classification may be housed in

16 the same cell for the 14-day observation period. (Id.) Detainees admitted on separate

17 dates and those at different risk classification levels are not housed together. (Id.) If the

18 14-day period passes without any detainees in a cell displaying signs or symptoms of

19 COVID-19, the detainees are released to other housing units in the facility. (Id.) A

20 separate remote medical unit has been established to monitor detainees undergoing the

21 14-day observation. (Id.)

22 //

ORDER - 10

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1

In response to the COVID-19 pandemic, OIC Bostock testifies that GEO has

2 enhanced its cleaning in all units, food preparation and service areas, intake rooms and

3 other work centers with increased emphasis on cleaning contact areas with disinfectant

4 cleaners approved as effective against COVID-19. (Id. ¶ 16.) GEO makes soap and

5 cleaning supplies available to detainees in all housing units and work areas at the NWDC

6 and has increased the amount of soap, disinfectant cleaner, and food service sanitizer in

7 every housing unit in response to COVID-19. (Id. ¶ 17.) GEO also holds weekly town

8 hall meetings with detainees in every housing unit to educate detainees on hand washing

9 and covering coughs. (Id. ¶ 18.) Nevertheless, some current and former detainees

10 declare that they did not receive adequate information on prevention techniques. (See,

11 e.g., Dawson Decl. ¶ 6; Nunez Lopez Decl. ¶ 14.) GEO instructs detainees to clean

12 tables and horizontal surfaces before each meal and to disinfect such surfaces after each

13 meal. (1st Bostock Decl. ¶ 18.) GEO also instructs detainees to clean countertops,

14 microwave handles, door handles, exercise equipment, electronic tablets, telephones, and

15 any high-risk contact areas with disinfectant cleaner. (Id.)

16

On March 13, 2020, ICE temporarily suspended social visitation at the NWDC,

17 and other detention facilities, to prevent the spread of COVID-19, and cancelled all tours

18 of the NWDC. (Id. ¶¶ 19-20.) GEO screens all contractors, vendors, attorneys, and court

19 visitors through a questionnaire that covers whether the individual is currently

20 experiencing any possible COVID-19 symptoms and recent travel history and prohibits

21 entry to anyone who positively reports symptoms or possible exposure to COVID-19.

22 (Id. ¶ 21.) Visitors are limited to noncontact visits unless a contact visit is absolutely

ORDER - 11

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1 necessary and has been approved by the OIC or Assistant OIC. (Id. ¶ 22.) If an

2 attorney’s request for a contact visit is approved, the attorney must wear personal

3 protective equipment (“PPE”), including a mask. (Id.) In addition, ICE has implemented

4 a daily duty officer to facilitate unmonitored attorney-client phone calls from each

5 housing unit so that detainees do not have to move throughout the facility. (Id.)

6 ICE and GEO are collaborating on a process to implement temperature checks of

7 all employees and staff for GEO, ICE, and Executive Office for Immigration Review

8 (“EOIR”) at the NWDC starting on March 27, 2020. (Id. ¶ 24.) ICE and GEO

9 employees are instructed to stay home if they are sick, experiencing any possible

10 COVID-19 symptoms, or have been in close contact with someone diagnosed with

11 COVID-19. (Id. ¶ 25.) GEO is voluntarily notifying ICE if any of its employees test

12 positive or are diagnosed with COVID-19. (Id.) As of March 27, 2020, no ICE or GEO

13 employee or staff at the NWDC had reported testing positive for COVID-19.7 (Id.) In

14 addition, ICE instituted a telework program for its employees at the NWDC to minimize

15 the number of employees present at the facility. (Id. ¶ 26.)

16

In response to the court’s order to file additional evidence, the parties filed

17 contrasting evidence regarding detainees’ ability to engage in physical distancing. Mr.

18 Langford declares that detainees at the NWDC have the ability to maintain at least six

19 feet of physical distance from each other, that there is 2,848 square feet of day room

20

21

7 Because the presence of an active COVID-19 case at the NWDC would be a significant

development, the court ORDERS Respondents to inform Petitioners and the court as soon as

22

practicable but at least within 24 hours after learning that any individual physically present at the NWDC tests positive for or is otherwise diagnosed with COVID-19.

ORDER - 12

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1 space in Unit A-2, which when divided by 80 detainees, represents 35.6 square feet per

2 detainee. (2d Langford Decl. ¶ 6.) However, several current and former detianees

3 declare that it was difficult to maintain physical distance at the medical clinic (see, e.g.,

4 Dawson Decl. ¶ 4; Espinoza-Esparza Decl. ¶ 4;), when eating (see, e.g., Dawson Decl.

5 ¶ 5; Espinoza-Esparza Decl. ¶ 5; Gonzalez Decl. ¶ 4), and while waiting to use the

6 restroom (see Espinoza-Esparza Decl. ¶ 6). A detainee and attorney declare that

7 maintaining physical distance is not possible while at immigration court. (Gonzalez

8 Decl. ¶ 5 (declaring that detianees are “bunched together” in a holding room and in the

9 hall prior to entering the courtroom); Augustine Decl. (Dkt. # 83) ¶¶ 3-5 (describing

10 crowded conditions while waiting to enter the courtroom).)

11

When at maximum capacity, NWDC detainees would normally sleep less than six

12 feet apart. (2d Langford Decl. ¶ 7.) However, NWDC has been operating at roughly

13 half-capacity, and GEO has spread out the sleeping arrangements to allow for greater

14 distance between detainees. (Id.) Dividing the available sleeping space by the present

15 detainee population yields 31 square feet of sleeping space per detainee. (Id. ¶ 8.) When

16 detainees are assigned to sleep in a bunk bed, there is only four feet of space between the

17 top bunk and lower bunk. (Id. ¶ 14.) However, there is a metal and mattress barrier

18 dividing that space. (Id.) Nevertheless, Ms. Dawson, who left the NWDC on March 30,

19 2020, declares that the beds were about a foot apart. (Dawson Decl. ¶ 3.) Mr.

20 Espinoza-Esparza declares that detainees’ beds were inches apart. (Espinoza-Esparza

21 Decl. ¶ 3.) Mr. Langford declares that situations exist in which detainees may choose to

22 be within six feet of each other, including meal preparation for those who volunteer, or

ORDER - 13

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1 participatation in the voluntary work program (“VWP”), which is not required. (2d

2 Langford Decl. ¶ 14.)

3

Director Malakhova declares that the medical clinic and the Medical Housing Unit

4 (“MHU”), including the line where medications are dispersed, has posted signs and color

5 footprints placed on the floor to assist detainees in maintaining physical distance. (1st

6 Malakhova Decl. ¶ 2.)8 To increase social distancing, MHU rooms at the NWDC are

7 limited to single patient occupancy. (Id. ¶ 3.) Detainees may come within six feet of

8 IHSC staff within the medical clinic and MHU. (Id. ¶ 4.) To mitigate the risk of

9 contracting COVID-19, MHU, IHSC, and GEO have implemented measures that include

10 temperature check screening all IHSC employees upon entry, implementing a universal

11 mask policy for IHSC staff on April 1, 2020, requiring GEO staff in the medical clinic to

12 wear surgical masks at all times, stocking N95 respirator masks for use by medical staff

13 for individuals with COVID-19 presumptive symptoms, and cancelling outside elective

14 medical appointments. (Id. ¶¶ 4-5.) Director Malakhova declares that IHSC has the

15 necessary resources to execute all of its COVID-19 response plans. (Id. ¶ 23.)

16

Notwithstanding the above measures, current and former detainees complain of a

17 number of other conditions at the NWDC. Those include using the same water fountain

18 that is not cleaned between uses (Dawson Decl. ¶ 8); using the same toilets, showers,

19 sink, and microwaves (id. ¶ 8); inadequate cleaning of food trays (id.); having to request

20 //

21

8 One released Petitioner, Ms. Dawson, declares that “[t]hey did not put any marks on the

22

ground so we could tell how far apart six feet is.” (Dawson Decl. ¶ 7.) However, it is unclear to which area of the NWDC Ms. Dawson refers.

ORDER - 14

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 15 of 30

1 access to the janitor’s closet to obtain the cleaning solution for those on cleaning duty (id.

2 ¶ 9); provision of a sanitizing spray instead of hand sanitizer (Espinoza-Esparza Decl.

3 ¶ 6); and being forced to buy soap for showers (Gonzalez Decl. ¶ 10).

4

In late March 2020, ERO Tacoma began conducting a discretionary

5 review of certain detainees who meet the current CDC criteria as at-risk due to

6 COVID-19. (1st Bostock Decl. ¶ 31.) The review requires that IHSC and ICE identify

7 detainees who fall within an at-risk category and who are not subject to various

8 mandatory custody provisions based on their immigration and criminal histories. (Id.) If

9 an identified detainee is not subject to mandatory custody, ERO Tacoma determines

10 whether the detainee is otherwise a danger to the public and/or a flight risk such that

11 release is not appropriate. (Id.) ICE is currently conducting this review on an

12 individualized basis to determine in the totality of the circumstances whether each

13 detainee is a danger to the community or a significant flight risk such that release is not

14 appropriate. (2d Bostock Decl. ¶ 39.) As a result of this labor-intensive review, by

15 March 27, 2020, ICE had already released seven detainees from custody, including four

16 Petitioners in this case. (See 1st Bostock Decl. ¶¶ 31-32; see also 1st Not. of Release at

17 1; 2d Not. of Release at 2; 3d Not. of Release at 3.) Among the five Petitioners still

18 detained at the NWDC, Ms. Lopez Nunez, Ms. Ramirez Ochoa, Mr. Melgar-Alas, and

19 Mr. Bayana are subject to mandatory custody. (3d Bostock Decl. ¶ 12.) Mr. Herrera’s

20 custody is currently subject to ICE’s review process described above. (Id.)

21

Finally, ICE has been regularly assessing current conditions and future projections

22 regarding the course of the virus, regularly updating prevention and control protocols,

ORDER - 15

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1 and working with IHSC, GEO, and EOIR staff to ensure appropriate procedures are

2 implemented at the NWDC in compliance with CDC recommendations. (2d Bostock

3 Decl. ¶ 30.)

4

III. ANALYSIS

5

Petitioners contend that their continued detention in the face of the COVID-19

6 pandemic violates their Fifth Amendment right to reasonable safety while in custody.

7 (See 2d TRO Mot. at 12.) Respondents disagree, and further oppose Petitioners’ motion

8 on the grounds that Petitioners lack Article III standing and the court lacks jurisdiction to

9 hear this case as a habeas petition under 28 U.S.C. § 2241. (See generally 1st TRO

10 Resp.; 2d TRO Resp.; Res. OSC Resp.) For the reasons set forth below, the court (1)

11 concludes that Petitioners have Article III standing, (2) concludes that the court has

12 jurisdiction to adjudicate Petitioners’ Fifth Amendment claims under the habeas statute,

13 28 U.S.C. § 2241, and (3) DENIES Petitioners’ second motion for a TRO.

14 A. Article III Standing

15

Respondents contend that Petitioners lack Article III standing. (See 1st TRO

16 Resp. at 7-11; Res. OSC Resp. at 1-9.) Standing has three elements: “The plaintiff must

17 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

18 the defendant, and (3) that is likely to be redressed by a favorable judicial

19 decision.” Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1547 (2016) (citing Lujan

20 v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of the Earth, Inc. v. Laidlaw

21 Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The plaintiff bears the burden of

22 establishing these elements, and when “a case is at the pleading stage, the plaintiff must

ORDER - 16

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 17 of 30

1 ‘clearly . . . allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422

2 U.S. 490, 518 (1975)). The standing inquiry is distinct from the merits of Petitioners’

3 claims. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (stating that the

4 court’s “threshold inquiry into standing ‘in no way depends on the merits’” of the

5 plaintiff’s claim).

6

“To establish injury in fact, a plaintiff must show that he or she suffered an

7 invasion of a legally protected interest that is concrete and particularized and actual or

8 imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 181,

9 (quoting Lujan, 504 U.S. at 560); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398,

10 409 (2013). Petitioners must show that the injury is “certainly impending” or “there is a

11 substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S.

12 149, 158 (2014) (internal quotation marks omitted). “A future injury need not be

13 ‘literally certain,’ but there must be a ‘substantial risk’ that it will occur.” Nw.

14 Requirements Utils. v. F.E.R.C., 798 F.3d 796, 805 (9th Cir. 2015) (quoting Clapper, 568

15 U.S. at 432). “[T]he question becomes whether any perceived threat . . . is sufficiently

16 real and immediate to show an existing controversy.” O’Shea v. Littleton, 414 U.S. 488,

17 496 (1974). Nevertheless, unsafe conditions in a prison or detention center in and of

18 themselves constitute a concrete injury, even if further resulting harm has not yet

19 occurred. See, e.g., Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (holding

20 that prisoners “have the right not to be subjected to the unreasonable threat of injury or

21 death by fire and need not wait until actual casualties occur in order to obtain relief from

22 such conditions.”); id. (“Failure to provide adequate cell cleaning supplies, under

ORDER - 17

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 18 of 30

1 circumstances such as these, deprives inmates of tools necessary to maintain minimally

2 sanitary cells, seriously threatens their health, and amounts to a violation of the Eighth

3 Amendment.”).

4

The court concludes Petitioners have Article III standing. Five Petitioners are

5 currently detained at the NWDC. (See Pet. ¶ 39.) Petitioners allege that in the face of the

6 COVID-19 pandemic, “social distancing and hygiene measures are Petitioners’ only

7 defense against COVID-19.” (See id. ¶ 82.) Petitioners further allege that their current

8 detention conditions make it “exceedingly difficult, if not impossible” to exercise

9 distancing and hygiene measures because Petitioners “share toilets, sinks, and showers,

10 eat in communal spaces, and are in close contact with the many other detainees and

11 officers around them.” (See id.)

12

Petitioners sufficiently allege a concrete injury in the form of unsafe conditions at

13 the NWDC, where five Petitioners are currently detained. The detention conditions are

14 fairly traceable to Respondents, who keep Petitioners in detention. Finally, Petitioners’

15 adequately allege that their injury “is likely to be redressed” by the relief Petitioners

16 seek—release from the NWDC.

17 B. Jurisdiction Under 28 U.S.C. § 2241

18

In addition to challenging Petitioners’ Article III standing, Respondents also

19 challenge this court’s jurisdiction to adjudicate Petitioners’ Fifth Amendment claim as a

20 petition for a writ of habeas corpus because Plaintiffs’ claim is about the conditions of

21 their confinement, not the fact or duration of their confinement. (See 1st TRO Resp. at

22 11; 2d TRO Resp. at 2-3.) Petitioners disagree, and argue in part that they may pursue a

ORDER - 18

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1 writ of habeas corpus because “their confinement is unlawful” and they are entitled to

2 immediate release. (See 2d TRO Mot. at 21 n.16.)

3

The court disagrees with Petitioners that this is not a conditions of confinement

4 claim. The basis for Petitioners’ claim rests on specific conditions within the NWDC that

5 Petitioners allege expose them to a greater risk of contracting COVID-19. (See Pet.

6 ¶¶ 67-73 (discussing case law regarding, e.g., “conditions of reasonable health and

7 safety” and “[c]onditions that pose an unreasonable risk of harm.”), ¶ 84 (alleging that the

8 NWDC’s “conditions of confinement” subject Petitioners to a heightened risk of

9 contracting COVID-19.); 2d TRO Mot. at 9 (“[A]nything less than aggressive screening

10 and testing of all detainees, staff, officials and others who enter the facility is insufficient

11 to contain COVID-19’s spread.”), ¶ 21 (discussing constitutional prohibitions on “unsafe

12 prison conditions” and “detention conditions amounting to punishment”).) If those

13 alleged conditions could be remedied—notwithstanding Petitioners’ assertions that they

14 cannot—Petitioners do not raise any separate challenge to the authority under which they

15 were detained or the length of their detention. (See generally Pet.; 1st TRO Mot.; 2d

16 TRO Mot.) Accordingly, this is a conditions of confinement case, and the court evaluates

17 it as such.

18

The United States Supreme Court has not yet resolved the question of whether a

19 conditions of confinement claim may be brought in the form of a petition for a writ of

20 habeas corpus. See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“Thus, we leave to

21 another day the question of the propriety of using a writ of habeas corpus to obtain

22 review of the conditions of confinement, as distinct from the fact or length of the

ORDER - 19

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 20 of 30

1 confinement itself.”). The majority of federal circuit courts allow detainees to challenge

2 their conditions of confinement via a habeas petition. See Aamer v. Obama, 742 F.3d

3 1023, 1036-37 (D.C. Cir. 2014) (citing United States v. DeLeon, 444 F.3d 41, 59 (1st Cir.

4 2006); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008); Woodall v. Fed. Bureau

5 of Prisons, 432 F.3d 235, 242 & n.5 (3d Cir. 2005); McNair v. McCune, 527 F.2d 874,

6 875 (4th Cir. 1975); Adams v. Bradshaw, 644 F.3d 481, 482-83 (6th Cir. 2011)). The

7 Ninth Circuit has not yet decided the issue. See Nettles v. Grounds, 830 F.3d 922, 931

8 (9th Cir. 2016) (holding that if a state prisoner’s claim “would not necessarily spell

9 speedier release,” it does not lie at “the core of habeas corpus,” and must be brought, if at

10 all, under 42 U.S.C. § 1983; but explicitly stating that the Ninth Circuit would not

11 address how this standard “applies to relief sought by prisoners in federal custody”).

12

Nevertheless, a three-judge panel on the Ninth Circuit recently transferred to this

13 district several emergency motions in other matters that the Ninth Circuit construed as

14 habeas petitions. See, e.g., Almeida Transfer Order; Patel Transfer Order; Pablo

15 Transfer Order. In those emergency motions, like Petitioners’ TRO motions here, the

16 detainees challenge their detention at the NWDC based on conditions that allegedly

17 increase the risk of COVID-19 infection. See Almeida Transfer Order at 2; Patel

18 Transfer Order at 2; Pablo Transfer Order at 2. Like the Petition before this court, the

19 transferred petitions challenge the conditions of confinement, not the fact or duration of

20 confinement. See generally Almeida, No. C20-0490RSM-BAT, Almeida Pet. (Dkt. # 1)

21 (W.D. Wash. Mar. 31, 2020); Patel, No. C20-0488RSM-BAT, Patel Pet. (Dkt. # 1)

22 //

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Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 21 of 30

1 (W.D. Mar. 31, 2020); Pablo, No. C20-489RSM-BAT, Pablo Pet. (Dkt. # 1) (W.D.

2 Wash. Mar. 31, 2020).

3

The Ninth Circuit’s transfer orders holding that this district court should consider

4 the transferred emergency motionss as habeas petitions are unpublished, and therefore the

5 transfer orders do not definitively resolve this unsettled area of law. (See Almeida

6 Transfer Order at 1; Patel Transfer Order at 1; Pablo Transfer Order at 1.) Nevertheless,

7 because both the transferred emergency motions are similar to present Petition, this court

8 will follow the Ninth Circuit’s direction in the transfer orders—to adjudicate the

9 emergency motions as petitions for writs of habeas corpus under 28 U.S.C. § 2241—and

10 consider the present Petition under the rubric of 28 U.S.C. § 2241 as well.

11 C. Standards for a TRO

12

The standard for issuing a TRO is the same as the standard for issuing a

13 preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434

14 U.S. 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be

15 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

16 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for

17 preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to

18 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

19 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an

20 injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th

21 Cir. 2009) (citing Winter, 555 U.S. at 20).

22 //

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Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 22 of 30

1

As an alternative to this test, a preliminary injunction is appropriate if “serious

2 questions going to the merits were raised and the balance of the hardships tips sharply in

3 the plaintiff’s favor,” thereby allowing preservation of the status quo when complex legal

4 questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell,

5 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the “serious questions” approach

6 supports the court’s entry of a TRO only so long as the plaintiff also shows that there is a

7 likelihood of irreparable injury and that the injunction is in the public interest. Id. at

8 1135. The moving party bears the burden of persuasion and must make a clear showing

9 that it is entitled to such relief. Winter, 555 U.S. at 22.

10 D. Petitioners’ Motion

11

The court concludes that Petititioners have not made a clear showing that they are

12 entitled to the extraordinary remedy they request.

13

1. Likelihood of Success on the Merits

14

To obtain a TRO, Petitioners must make a clear showing that they are likely to

15 succeed on the merits or, alternatively, have raised serious questions going to the merits

16 of their habeas petition on Fifth Amendment grounds. To succeed on a habeas petition,

17 Petitioners must show that they are “in custody in violation of the Constitution or laws or

18 treaties of the United States.” See 28 U.S.C. § 2241. For the reasons stated below, the

19 court concludes that Petitioners fail to make a clear showing that they are likely to

20 succeed on the merits of their claim or that they have raised serious questions going to the

21 merits.

22 //

ORDER - 22

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1

When the government detains a person pursuant to an immigration violation, the

2 person is a civil detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). To evaluate

3 the constitutionality of a pretrial detention condition under the Fifth Amendment, a

4 district court must determine whether those conditions “amount to punishment of the

5 detainee.” Bell, 441 U.S. at 535; see also Kingsley v. Hendrickson, --- U.S. ---, 135 S. Ct.

6 2466, 2473-74 (2015). Punishment may be shown through an express intent to punish or

7 a restriction or condition that “is not reasonably related to to a legitimate governmental

8 objective.” Bell, 441 U.S. at 539; see also Kingsley, 135 S. Ct. at 2473-74 (clarifying that

9 “a pretrial detainee can prevail by providing only objective evidence that the challenged

10 governmental action is not rationally related to a legitimate governmental objective or

11 that it is excessive in relation to that purpose”). In addition, “when the State takes a

12 person into its custody and holds him there against his will, the Constitution imposes

13 upon it a corresponding duty to assume some responsibility for his safety and general

14 well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200

15 (1989).9 Thus, for example, the government violates the Due Process Clause if it fails to

16 provide civil detainees with “food, clothing, shelter, medical care, and reasonable safety.”

17 Id. at 200. In the context of a Due Process Clause failure-to-protect claim, the Ninth

18 Circuit declared that “the defendant’s conduct must be objectively unreasonable, a test

19 that will necessarily ‘turn on the facts and circumstances of each particular case.’”

20

21

9 In DeShaney, the Supreme Court analyzed the petitioners’ rights under the Fourteenth

Amendment. See 489 U.S. at 194-95. Fifth Amendment due process claims and Fourteenth

22

Amendment due process claims are analyzed in the same way. See Paul v. Davis, 424 U.S. 693, 702 n.3 (1976).

ORDER - 23

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1 Castro v. Cty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley, 135 S. Ct.

2 at 2473) (alterations and internal quotation marks omitted).10

3

Petitioners do not present allegations or evidence to show an “express intent” to

4 punish Petitioners. (See generally 2d TRO Mot.) Moreover, Plaintiffs do not dispute that

5 preventing detained aliens from absconding and ensuring that they appear for removal

6 proceedings is a legitimate governmental objective. See Jennings v. Rodriguez,

7 --- U.S. ---, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 520-22 (2003);

8 Zadvydas v. Davis, 533 U.S. at 690-91. Therefore, Petitioners may succeed on their Fifth

9 Amendment claim if their confinement is not reasonably related to to a legitimate

10 governmental objective or is excessive in relation to the legitimate governmental

11 objective, see Kingsley, 135 S. Ct. at 2473-74, or if Respondents fail to provide for

12 Petitioners’ reasonable safety, see DeShaney, 489 U.S. at 200.11

13

As of the date of this order, there is no confirmed COVID-19 case among any

14 detainees, staff, or visitors at the NWDC. Nevertheless, Petitioners contend that due to

15
10 “[T]he Supreme Court has treated medical care claims substantially the same as other 16 conditions of confinement violations including failure-to-protect claims.” Gordon v. Cty. of
Orange, 888 F.3d 1118, 1124 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. 17 Gordon, 139 S. Ct. 794, 202 L. Ed. 2d 571 (2019).

18

11 In addition to Petitioners’ Fifth Amendment arguments, Petitioners rely on a series of

court orders regarding bail and other discretionary determinations relating to confinement or

19 release. (See 2d TRO Mot. at 13-14 (citing, among other cases, United States v. Stephens, No.

15-CR-95 (AJN), 2020 WL 1295155, at *1 (S.D.N.Y. Mar. 19, 2020) (granting bail); United

20 States v. Raihan, No. 20-cr-68 (BMC) (JO), Dkt. # 20 at 10:12-19 (E.D.N.Y. Mar. 12, 2020) (continuing a criminal defendant on pretrial release)).) However, the decisions courts make with

21

respect to bail, in addition to the other discretionary determinations, bear little on the task before the court, which involves adjudicating Petitioners’ claim that Respondents violate their Fifth

22

Amendment rights. That weighty analysis cannot be conducted on the basis of discretionary decisions made with respect to individuals and circumstances not before this court.

ORDER - 24

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1 the rampant spread of COVID-19, it will inevitably sweep through the NWDC, and when

2 it does, Petitioners will be powerless to protect themselves because they are unable to

3 engage in the necessary physical distancing. (See 2d TRO Mot. at 2 (asserting that the

4 COVID-19 pandemic “will, if it has not already,” reach the NWDC).) Petitioners assert

5 that “[p]reventive measures that may be effective . . . such as remaining separated from

6 other persons and frequent disinfection after occasional contact with other persons, are

7 simply not possible in the detention setting.” (See id. at 22-23).

8

At the outset, the court rejects as irrelevant Petitioners’ evidence of the conditions

9 at detention facilities or jails that are not at issue in this case. For example, Drs. Allen

10 and Rich testify about the potential risks to immigrant detainees generally due to the

11 COVID-19 pandemic. (See generally Allen-Rich Ltr.) The court does not dismiss these

12 concerns but notes that nothing in Drs. Allen and Rich’s letter addresses the actual

13 conditions at the NWDC. (See generally id.) Instead, Drs. Allen and Rich point to

14 reported conditions at prisons in China and Iran, the presence of COVID-19 at New

15 York’s Rikers Island, the possible presence of COVID-19 among immigrant detainees at

16 ICE’s Aurora facility, and a reported positive COVID-19 test for a member of ICE’s

17 medical staff at a detention center in New Jersey. (See id. at 3.) The fact that other

18 immigration detention centers “have faced outbreaks of other infectious diseases in recent

19 years,” or that, for example, “ICE mishandled and failed to take adequate measures to

20 protect detainees in Virginia,” is not evidence of the conditions facing Petitioners at the

21 NWDC in this case. (See id. at 9; see also Stern Decl. (Dkt. # 6) ¶ 7 (discussing the

22 conditions of “detention facilities” but not conditions at the NWDC specifically); 1st

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1 Greifenger Decl. (Dkt. # 4) ¶¶ 10-12 (discussing the conditions at “[m]any immigration

2 detention facilities”); Lorenzen-Strait Decl. (Dkt. # 40) ¶¶ 1-16 (discussing ICE policies

3 generally).)

4

In contrast to the conditions at other facilities, here, Respondents submit evidence

5 that they are taking substantial measures at this moment to prevent an outbreak of

6 COVID-19 at the NWDC and contain an outbreak should one occur. Those measures

7 include, among others, (1) policies under which the “[t]he last transfer of ICE detainees

8 the [NWDC] received from the southern border occurred on or about March 5, 2020”

9 (see 1st Bostock Decl. ¶ 6); (2) exercising discretion to delay enforcement actions that

10 limit the number of new detainees at the NWDC (id. ¶¶ 8-9); (3) “temperature and

11 prescreening checks of all new detainees arriving at the [NWDC] prior to entrance to the

12 facility” (id. ¶ 11); (4) providing each detainee an instructional flyer “outlining proper

13 hand washing hygiene and the importance of covering coughs” and placing in each

14 housing unit “additional posters in multiple languages concerning hand washing hygiene

15 and covering coughs” (id. ¶ 13); (5) enhancing cleaning measures, including “increased

16 emphasis on cleaning contact areas with disinfectant cleaners approved as effective

17 against COVID 19” (id. ¶ 16); (6) providing “[s]oap and cleaning supplies” to “detainees

18 in all housing unites and work areas” (id. ¶ 17); (7) conducting weekly meetings “to

19 educate detainees on hand washing and covering coughs” (id. ¶ 18); (8) suspending social

20 visitation and cancelling all tours (id. ¶¶ 19-20); (9) providing extra hand sanitizer to ICE

21 employees and disinfectant wipes so they can conduct extra cleaning of “high contact

22 areas” such as door handles, phones, and computers (id. ¶ 23); (10) instituting

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1 temperature checks and instructing ICE and GEO employees to stay home if they are sick

2 or have been in close contact with someone diagnosed with COVID-19 (id. ¶ 25); and

3 (11) implementing a telework program under which only half of ERO employees are

4 present at the NWDC at any one time (id. ¶ 26). Further, the court notes that

5 Respondents have made the discretionary decision to release four Petitioners, which

6 provides these individuals with all of the relief they request pursuant to the present

7 motion. (See 1st Not. of Release at 1; 2d Not. of Release at 1; 3d Not. of Releaese at 1.)

8

These measures generally track the recommendations of DHS’s medical subject

9 matter experts and other public health authorities in responding to COVID-19. (See

10 Allen-Rich Ltr. at 6 (recommending processes for screening, testing, isolation and

11 quarantine, limiting transport and transfer of immigrant detainees, rapidly identifying a

12 positive COVID-19 case, “consultation with CDC and public health officials to forge

13 optimal infection prevention control strategies to mitigate the health risks to detained

14 patient populations and correctional workers,” and considering the release of detainees

15 who do not pose an immediate risk to public safety); 1st Bostock Decl. ¶ 28.) Although

16 Drs. Allen and Rich may recommend “releasing all detainees in high risk medical

17 groups” (see Allen-Rich Ltr. at 6), Respondents cannot do so without first assessing

18 whether such release is otherwise authorized by law and in the public’s interest in any

19 given case. Indeed, ICE is presently engaged in such a case-by-case analysis and has

20 begun to release high-risk detainees on this basis. (See 1st Bostock Decl. ¶¶ 31-32.)

21

Nevertheless, Petitioners raise additional concerns in declarations filed on April 3,

22 2020, regarding their ability to maintain social distancing in all circumstances while

ORDER - 27

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1 detained. (See, e.g., Dawson Decl. ¶¶ 4-5; Espinoza-Esparza Decl. ¶¶ 5-6; Gonzalez

2 Decl. ¶ 4.) Indeed, Drs. Allen and Rich recommend implementing “immediate social

3 distancing to reduce the likelihood of exposure to detainees, facility personnel, and the

4 general public.” (See Allen-Rich Ltr. at 6.) Nevertheless, under the Fifth Amendment,

5 Respondents are not required to eliminate any risk to Petitioners. Instead, Respondents

6 are required to provide for their “reasonable safety.” See DeSahney, 489 U.S. at 200. In

7 the face of the measures Respondents are taking to prevent and contain a potential

8 COVID-19 outbreak, Petitioners’ evidence of current conditions at the NWDC is

9 insufficient to warrant the “extraordinary relief” of a TRO. The court is persuaded from

10 the evidence filed in this case that Respondents are taking active and substantial measures

11 to respond to a unique, unprecedented, and extremely challenging public health crisis.

12 These measures create conditions that are reasonably related and not excessive in relation

13 to the government’s interests in preventing flight and protecting public safety—

14 particularly when ICE is not authorized by statute to release several Petitioners and has

15 legitimate concerns about releasing others with extensive criminal histories. Moreover,

16 Respondents’ measures generally track the recommendations of public health authorities.

17 (See Allen-Rich Ltr. at 6.)

18

The court is aware that other district courts in other parts of the country have

19 recently granted TRO motions in favor of immigration detainees on Fifth Amendment

20 grounds. However, the evidence of current conditions at the NWDC differs in significant

21 ways from the evidence before those other district courts. See, e.g., Basank, 2020 WL

22 1481503, at *7 (“Each of the jails where a Petitioner is being housed has reported

ORDER - 28

Case 2:20-cv-00409-JLR-MAT Document 91 Filed 04/08/20 Page 29 of 30

1 confirmed cases of COVID-19.”); Coronel, 2020 WL 1487274 at *4 (stating that, unlike

2 in this case, “the record demonstrates that ICE has not taken any action to address the

3 particular risks COVID-19 poses to high-risk individuals”); Castillo, 2020 WL 1502864

4 at *1 (stating that “[o]ver the years, and as recently as 2018, DHS’s Office of the

5 Inspector General had, repeatedly, found that significant and various health and safety

6 risks existed at Adelanto”). It would be improper for this court to rely on conditions at

7 other detention facilities to conclude that the conditions at the NWDC represent a Fifth

8 Amendment violation.

9

2. Likelihood of Irreparable Harm

10

The court also concludes that Petitioners do not meet their burden to show that

11 “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. As

12 discussed above, given the measures Respondents are currently taking, the court cannot

13 conclude either that the spread of COVID-19 inside the NWDC is inevitable, or that

14 Respondents will be unable to contain it if it occurs. No one can entirely guarantee safety

15 in the midst of a global pandemic. However, the standard under which the court

16 evaluates Petitioners’ second TRO motion is not guaranteed safety—an impossible

17 standard to meet no matter the circumstances—but rather a likelihood of irreparable

18 harm. The evidence before the court does not meet that standard. Therefore, the court

19 DENIES Petitioners’ second motion for a TRO.12

20 //

21 12 Having concluded that Petitioners fail to meet the first two prongs of the TRO
22 standard, the court finds it unnecessary to address the third and fourth prongs.

ORDER - 29

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1

IV. CONCLUSION

2

For the foregoing reasons, the court DENIES Petitioners’ second motion for a

3 temporary restraining order (Dkt. # 36) and ORDERS Respondents to inform Petitioners

4 and the court as soon as practicable but within at least 24 hours after learning that any

5 individual physically present at the NWDC tests positive for or is otherwise diagnosed

6 with COVID-19.

7

Dated this 8th day of April, 2020.

8

9

A

10

JAMES L. ROBART

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

ORDER - 30

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1

2

3

4

UNITED STATES DISTRICT COURT FOR THE

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7

8 KARLENA DAWSON, et al.,
9
Plaintiff, 10
v.
11
12 NATHALIE ASHER, et al.,

CASE NO. C20-0409-JLR-MAT
SUPPLEMENTAL DECLARATION OF DR. SHERI MALAKHOVA, M.D.

13

Defendants.

14

15

I, Sheri Malakhova, M.D., declare as follows:

16 1. I am an Internal Medicine Doctor and serve as the Clinical Director for ICE
17 18 Health Services Corps ("IHSC") at the Northwest ICE Processing Center ("NWIPC") in
19 Tacoma, Washington. I have been employed at this facility since September 30, 2015, and my

20 duties include providing and overseeing the medical care of detainees housed at this facility.
21 2. I am aware of the Court' s April 1, 2020 Order to File Additional Evidence in this
22 case and provide the following declaration in response as a supplement to Dr. Rivera's
23
24 Declaration dated March 26, 2020. (Rivera Deel., Dkt. No. 65)

25

3. This declaration is based upon my personal and professional knowledge and

26 information obtained from various records and systems maintained by DHS in the regular course
27
of business. I provide this declaration based on the best of my knowledge, information, belief,
28
and reasonable inquiry for the above captioned case.

DR. SHERI MALAKHOVA SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 1

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 86 Filed 04/06/20 Page 2 of 3

1 4. On April 3, 2020, Petitioners have filed the declaration of Flavio Lopez Gonzalez, who is

2

not a named Petitioner in this case. See Lopez Gonzalez Deel., Docket No. 80. Declarant

3
Lopez Gonzalez claims that while he was in cohorting, he was unable to receive medical
4

5

attention despite feeling feverish, fatigued and having congestion. Id. at par. 15. In

6

response, ICE requested IHSC review the declarant's medical records to determine the

7

accuracy of his statement.

8
5. According to IHSC records, Detainee Lopez Gonzalez was admitted to the NWIPC on
9
March 7, 2020. Upon admission, he was screened for COVID-19 symptoms or concerns,
10

11

which included asking about having a fever, or respiratory symptoms and ifhe had any

12

exposure to a known COVID 19 patient. This screening was negative. He was screened

13

again for COVID-19 symptoms by the IHSC medical staff on March 13, 2020 due to

14
placement in cohorting while another detainee was being tested for COVID-19 (i.e. the
15

16

"index patient"). Symptoms monitoring included a daily questionnaire and a vitals check

17

for fever. On March 15, 2020, Lopez Gonzalez complained of nasal congestion. He was

18

evaluated by IHSC and was prescribed acetaminophen and nasal saline. It was

19
determined that his clinical symptoms and evaluation did not warrant testing for COVID-
20
19. He had a follow up appointment with a nurse on March 18, 2020 where his vital
21

22

signs were again normal and with a medical provider on March 19, 2020 where he was

23

diagnosed with an upper respiratory infection. At both evaluations, he did not present

24
with the clinical symptoms for COVID-19, so he did not warrant testing. Contrary to his
25
declaration, Detainee Lopez Gonzalez never presented with a fever during any of these
26

27

evaluations. He was released from cohorting on March 19 as the index patient tested

28

negative for COVID-19. He had a further follow up appointment with a nurse on March

DR. SHERI MALAKHOVA SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 2

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 {206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 86 Filed 04/06/20 Page 3 of 3

1

21, 2020 where he reported feeling better and a final follow up with a doctor on March

2

23, 2020 where he was noted to have a normal chest x-ray, normal oxygen level, and a

3
normal chest exam. The doctor concluded again that he showed no clinical signs or
4

5

symptoms ofCOVID-19.

6

II

7

II

8
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is
9
true and correct to the best of my knowledge and belief.
10

11

Executed this 6th day of April, 2020,

12

13

14

Sheri W. Malakhova, M.D.

Board Certified Internal Medicine

15

Clinical Director

Northwest ICE Processing Center

16

Tacoma, Washington

17

18

19

20

21

22

23

24

25

26

27

28

DR. SHERI MALAKHOVA SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 3

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 {206) 553-7970

 Case 2:20-cv-00409-JLR-MAT Document 64 Filed 03/30/20 Page 1 of 27

1

The Honorable James L. Robart

2

The Honorable Mary Alice Theiler

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON 8

9

KARLENA DAWSON; ALFREDO ESPINOZA- Case No. 20-0409

10

ESPARZA; NORMA LOPEZ NUNEZ; MARJORIS RAMIREZ-OCHOA; MARIA

JLR-MAT

11

GONZALEZ-MENDOZA; JOE HLUPHEKA

BAYANA; LEONIDAS PLUTIN HERNANDEZ; DEFENDANTS’ RESPONSE IN

12

KELVIN MELGAR-ALAS; JESUS GONZALEZ OPPOSITION TO THE MOTION

HERRERA, 13

FOR A TEMPORARY RESTRAINING ORDER

14

Petitioners-Plaintiffs,

15

v.

16

NATHALIE ASHER, Director of the Seattle Field

17

Office of U.S. Immigration and Customs

Enforcement; MATTHEW T. ALBENCE, Deputy

18

Director and Senior Official Performing the Duties

of the Director of the U.S. Immigration and

19

Customs Enforcement; U.S. IMMIGRATION AND

20

CUSTOMS ENFORCEMENT; STEPHEN LANGFORD, Warden, Tacoma Northwest ICE

21

Processing Center,

22

Respondents-Defendants.

23

24

25

26

27

28

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1

I. INTRODUCTION

2

Like the first TRO motion, this Court should deny the Plaintiffs’ second TRO motion

3 Dkt. No. 36 (“Mot.”) because they have not demonstrated that their detention at the Northwest
4 ICE Processing Center (“NWIPC”) violates due process solely because of the Coronavirus
5

6 Disease 2019 (“COVID-19”) pandemic in the United States. In fact, this TRO motion is

7 tantamount to a motion for reconsideration of their original TRO. Plaintiffs assert that “key

8 developments” since this Court’s order denying their TRO have changed the “narrow set of
9 circumstances before the Court.” Mot., at 1. These key developments include, inter alia, an 10
unpublished sua sponte Ninth Circuit order releasing a detainee from a different detention 11
facility, orders from other federal courts that have released individuals on bail or delayed 12
13 imprisonment, local governments that have released prisoners, and a letter from two doctors to

14 Congress recommending that the Department of Homeland Security (“DHS”) should consider

15 releasing detainees in high risk medical groups.

16

However, Plaintiffs continue to fail to demonstrate that the protocols U.S. Immigration

17 and Customs Enforcement (“ICE”) has implemented to protect those in its care and custody
18

19 from COVID-19 or the conditions inside of NWIPC make their detention an excessive

20 condition in relation to the legitimate objective of immigration detention. NWIPC has had no

21 confirmed cases of COVID-19. Second Rivera Decl., ¶ 11. In addition, overcrowding is not

22 an issue: NWIPC is only at 53.2% capacity. Bostock Decl., ¶ 6. Importantly, ICE and the ICE
23 Health Service Corp (“IHSC”) have implemented robust procedures and protocols to protect
24 the detainees, as described below. Plaintiffs ignore these facts, instead emphasizing the state of
25
26 COVID-19 outside of NWIPC.

27

28

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1

Plaintiffs again ask the Court to order their immediate release. Plaintiffs assert, “release

2 is the only mechanism that can safeguard Plaintiffs’ safety and lives in the present crisis. Mot.,
3 at 2. Plaintiffs’ motion is based on the assumption that Plaintiffs are unsafe in NWIPC – a
4
facility with no confirmed COVID-19 cases and excellent medical care available to the 5

6 detainees – and speculation that Plaintiffs will be safer in the metropolitan area they describe as

7 “the center of one of the largest known outbreaks in the United States.” Mot., at 5. Notably

8 absent from Plaintiffs’ filings are declarations explaining where Plaintiffs intend to go if
9 released, or if they even intend to abide by social distancing. The implications of such a
10 holding would be staggering. Under this theory, not just Plaintiffs, but accused criminals
11 12 subject to pretrial detention who enjoy broader constitutional protections than Plaintiffs would
13 be constitutionally entitled to release.

14

The Court should deny the TRO. First, Plaintiffs constitutional claims lack merit.

15 Second, Plaintiffs do not have a cognizable injury, much less an irreparable one. Finally, the

16 balance of equities and public interest tilt against granting a temporary restraining order.
17 Accordingly, Defendants respectfully request the Court deny Plaintiff’s motion.
18

19

II. FACTUAL BACKGROUND

20

A. Measures at NWIPC in response to COVID-19.

21

1. Detainee intake at NWIPC.

22

NWIPC is an ICE Health Service Corps (“IHSC”)-staffed facility that houses ICE

23 detainees. Dkt. No. 31, Second Decl. of Dr. Rivera, ¶ 2. IHSC provides direct medical, dental,
24

and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed 25

26 facilities throughout the nation. Id., ¶ 3. IHSC comprises a multidisciplinary workforce that

27

28

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1 consists of U.S. Public Health Service Commissioned Corps officers, federal civil servants, and
2 contract health professionals. Id., ¶ 4. 3
Since the initial reports of COVID-19, ICE epidemiologists have been tracking the 4
outbreak, regularly updating infection prevention and control protocols, and issuing guidance to 5 6 IHSC staff for the screening and management of potential exposure among detainees. Id., ¶ 5.
7 Moreover, ICE has maintained a pandemic workforce protection plan since February 2014,
8 which was last updated in May 2017. This plan provides specific guidance for biological 9
threats such as COVID-19. ICE instituted applicable parts of the plan in January 2020 upon the 10
discovery of the potential threat of COVID-19. Id., ¶ 6. IHSC has also been in contact with 11 12 relevant offices within DHS, and in January 2020, the DHS Workforce Safety and Health
13 Division provided DHS components additional guidance to address assumed risks and interim
14 workplace controls, including the use of N95 masks, available respirators, and additional
15 personal protective equipment. Id., ¶ 7. 16
Overcrowding is not an issue at NWIPC. NWIPC currently houses 838 detainees while 17
it has the capacity to hold 1,575 detainees. Bostock Decl., ¶ 6. Moreover, ICE does not 18 19 anticipate transfers from the southern border in the foreseeable future. Id., ¶ 7. ICE has also
20 adjusted its enforcement posture to ensure safety in light of the ongoing COVID-19 pandemic
21 to focus its enforcement on public safety risks and individuals subject to mandatory detention
22 based on criminal grounds. Id., ¶ 8. For individuals who do not fall into those categories, ICE 23
is currently exercising its discretion to delay enforcement actions until after the COVID-19 24
crisis or utilize alternatives to detention, as appropriate. Accordingly, ICE anticipates a limited 25 26 number of incoming detainees at NWIPC during the COVID-19 crisis. Id., ¶ 9.
27
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1

As of March 26, 2020, IHSC has implemented temperature and prescreening checks of

2 all new detainees arriving at the NWIPC prior to entrance to the facility. Bostock Decl., ¶ 11.
3 During intake medical screenings, routine comprehensive health assessments, or screenings
4
occasioned by detainee complaints, detainees are assessed for fever and respiratory illness, are 5

6 asked to confirm if they have had close contact with a person with confirmed COVID-19 in the

7 past 14 days, and whether they have traveled from or through areas with sustained community

8 transmission in the past two weeks. Dkt. 31, Rivera Decl., ¶ 11. The detainee’s responses and
9 the results of these assessments will dictate whether to monitor or isolate the detainee. Those
10 detainees that present symptoms compatible with COVID-19 are placed in isolation, where
11 12 they are tested. If testing is positive, they will remain isolated and treated. In case of any
13 clinical deterioration, detainees will be referred to a local hospital. Id., ¶ 12.

14

As of March 20, 2020, all incoming detainees to the NWIPC who do not meet the

15 current IHSC protocol requirements for isolation monitoring due to possible COVID-19
16 symptoms, exposure or testing, are placed in two separate housing units for 14 days of
17 monitoring for signs or symptoms of COVID-19. Bostock Decl., ¶ 14. One unit is designated
18
19 for male detainees and another for female detainees. Id. These housing units contain separate

20 cells. Id. Each cell may house up to four detainees, however not every cell is filled to

21 maximum occupancy. Id. Detainees who are admitted to the facility on the same date and who
22 are determined to be the same risk classification level may be housed in the same cell. Id. 23
Detainees admitted on separate dates and those at different risk classification levels are not 24
housed together. Id. Detainees in the 14-day observation period are not allowed to commingle 25
26 with other detainees in common areas during that 14-day period. Id. If 14 days pass without

27 any detainees in a cell displaying signs or symptoms of COVID-19, the detainees are released

28

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1 to other housing units in the facility. Id. A separate remote medical unit has been established
2 to monitor detainees undergoing 14-day observation in these two housing units. Id. 3
2. Detainee education, hygiene and sanitation at NWIPC. 4
The GEO Group (“GEO”) is an independent contractor that provides the facility, 5 6 management, personnel and services for 24-hour supervision of immigrant detainees in ICE
7 custody at NWIPC. Bostock Decl., ¶ 4. In response to COVID-19, GEO has informed ICE
8 that it has enhanced cleaning in all housing units, food preparation and service areas, intake 9
rooms and other work centers with increased emphasis on cleaning contact areas with 10
disinfectant cleaners approved as effective against COVID-19. Id., ¶ 16. Soap and cleaning 11 12 supplies are made available by GEO to detainees in all housing units and work areas at
13 NWIPC. Id., ¶ 17. GEO has informed ICE that it has increased the amount of soap,
14 disinfectant cleaner and food service sanitizer in every housing unit in response to COVID-19,
15 and that inventory levels of these supplies are monitored on each shift to ensure ready 16
availability. Id. 17
As a response to COVID-19, GEO’s executive staff have been conducting weekly town 18 19 hall meetings with detainees in every housing unit at NWIPC specifically to educate detainees
20 on hand washing and covering coughs. Id., ¶ 18. At these meetings, GEO instructs detainees
21 to clean tables and horizontal surfaces with San-T-10 Plus Food Service Sanitizer before each
22 meal and a neutral disinfectant after each meal. Id. Detainees are further instructed to clean 23
countertops, microwave handles, door handles, exercise equipment, electronic tablets used for 24
detainee entertainment and communication, telephones and any high-risk contact areas with 25 26 disinfectant cleaner. Id. A demonstration is provided as to how to clean electronic tablets and
27 telephones and detainees are instructed to clean them after each use. Id.
28

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1

3. Detainee visitation and staff safety measures.

2

ICE has taken strong precautionary measures to protect detainees from COVID-19

3 entering NWIPC. ICE has temporarily suspended social visitation in all detention facilities.
4

Id., ¶ 19. All tours of NWIPC have been cancelled. Id., ¶ 20. GEO is screening all 5

6 contractors, vendors, attorneys and court visitors through a questionnaire that includes, inter

7 alia, questions regarding whether the individual is currently experiencing any possible

8 symptoms of COVID-19 and recent travel history. Id., ¶ 21. Individuals who positively report
9 possible symptoms, possible exposure to COVID-19, or recent travel to areas of concern are
10 prohibited from entering NWIPC. Id. Attorney visits at NWIPC are limited to noncontact
11 12 visits unless a contact visit is necessary and approved by the ICE Officer in Charge or the
13 Assistant Officer in Charge. Id., ¶ 22.

14

ICE has instituted a telework program for its employees at the NWIPC, minimizing the

15 number of employees present at the facility. Id., ¶ 26. For the employees that must appear at
16 NWIPC, ICE and GEO employees have received multiple instructions and reminders
17 concerning the importance of hand washing and covering coughs to prevent the spread of
18
19 COVID-19. Id., ¶ 23. Extra hand sanitizer has been provided to employees throughout

20 NWIPC. Id. ICE has provided its own employees with disinfectant wipes so they may conduct

21 extra daily cleaning of high contact areas within their workspaces (door handles, phones,
22 computers, etc.) in addition to the daily cleaning provided by GEO maintenance staff. Id. 23
In addition, ICE and GEO employees have been instructed to stay home in the event 24
that they are sick, experiencing any possible symptoms of COVID-19, or have been in close 25
26 contact with someone diagnosed with COVID-19. Id., ¶ 24. Staff have also been asked about

27 recent travel to areas with COVID-19 outbreaks, such as New York. Id. Both GEO and ICE

28

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1 employees who are ill or believe they may have been exposed to COVID-19 are instructed to

2 follow the advice of their personal care providers. Id. No ICE or GEO employees or staff at
3 the NWIPC have reported testing positive for COVID 19. Id.
4
4. COVID-19 testing at NWIPC. 5

6

IHSC conducts COVID-19 testing pursuant to guidance issued by the Centers for

7 Disease Control (“CDC”): CDC Interim Guidance on Management of Coronavirus Disease

8 2019 (COVID-19) in Correctional and Detention Facilities. Second Rivera Decl., ¶ 8. The
9 clinician will screen for signs and symptoms compatible with COVID-19, such as fever, cough,
10 difficulty breathing (and other respiratory illness symptoms). Id. The clinician will also
11 12 consider epidemiologic factors such as the occurrence of local community transmission of
13 COVID-19 infections in a jurisdiction and is encouraged to test for other causes of respiratory

14 illness. Id. The resulting analysis of these factors will determine if the individual meets the

15 criteria for testing. Id. The local health department is always consulted prior to obtaining

16 samples. Id. The samples are sent to IHSC’s contract commercial laboratory, the local health
17 department or the CDC depending on availability of testing. Id.
18

19

There have been no positive COVID-19 tests within the IHSC staffed detained

20 population since IHSC started screening in January. Id., ¶ 11. While testing has been

21 conducted only on symptomatic individuals, IHSC monitors daily, separately or within cohorts,
22 detainees who do not have symptoms arriving from countries with community transmission of 23
COVID-19 and detainees with exposure to known positive COVID-19 individuals. Id. In 24
addition, high-risk detainees are monitored through chronic care clinics and all detainees have 25
26 daily access to sick call and are treated according to their needs. Id., ¶ 9.

27

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1

5. Alternatives to detention.

2

Early last week, ICE’s Enforcement Removal Operations (“ERO”) Tacoma began

3 conducting a discretionary review of detainee cases identified by IHSC as meeting the CDC’s
4

criteria as at-risk due to COVID-19, based on their medical records. Bostock Decl., ¶ 31. Such 5

6 a review process is labor intensive as it requires not only identification by IHSC that a detainee

7 falls within an at-risk category, but also a review of each detainee’s immigration and criminal

8 history to determine whether they are subject to various mandatory custody provisions. Id. If
9 an identified detainee is not subject to mandatory custody, a case-by-case analysis is then
10 conducted to determine whether each detainee is a danger and/or flight risk such that release is
11
12 not appropriate. Id. As a result of this ongoing review process, ICE has already released six

13 detainees from custody, including two of the named Plaintiffs. Id., ¶ 32.

14

B. Plaintiff’s immigration and criminal histories.1

15

Out of the nine Plaintiffs, only seven remain at NWIPC. After IHSC identified two

16 Plaintiffs as being at-risk for a severe illness due to COVID-19, ICE reviewed their cases and
17 released Plaintiffs Alfredo Espinoza-Esparza and Leonidas Plutin Hernandez. Bostock Decl.,
18

19 ¶¶ 34, 39; see also Lambert Decl., Ex. A. In addition, Plaintiff Maria Gonzalez-Mendoza is

20 scheduled for an individual hearing before an Immigration Judge (“IJ”) on March 31, 2020,

21 where she may raise the issue of bond. Id., ¶ 37. Plaintiff Jesus Gonzalez-Herrerra is currently
22 detained pursuant to INA § 236(a). Id., ¶ 41. ICE will not oppose a request for a bond hearing. 23
Id. 24
Many of Plaintiffs are not eligible for release at this time. Plaintiff Joe Hlupheka 25
26 Bayana’s actual name is Mketwa Phiri. Id., ¶ 38. He has been arrested approximately twenty-

27

28

1 For a more detailed recitation, please OIC Bostock’s Declaration, ¶¶ 33-42.

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1 two times for charges such as trespassing, lardeny, drugs, assault, and harassing
2 communications. Id. Plaintiff Kelvin Melgar-Alas, convicted of methamphetamine 3
distribution and a RICO violation, and a former MS-13 gang member, was denied bond in 4
February 2020 after an IJ found him to be a danger to the community and a flight risk. Id., 5
6 ¶ 40. Plaintiff Norma Lopez Nunez has been designated as a Franco-Gonzalez class member

7 with a court-appointed representative who withdrew her last request for bond and has never

8 renewed the request. Id., ¶ 35. Maria Ramirez-Ochoa, convicted of felony robbery that

9 included the use of a firearm, is being held pursuant to Immigration and Nationality Act
10 § 235(b), without eligibility for bond. Id., ¶ 36. Plaintiff Karlena Dawson is ineligible for bond
11
12 as she is also being held pursuant to INA § 235(b). Id., ¶ 42.

13

C. This Court’s Order denying Plaintiff’s motion for a TRO.

14

On March 19, 2020, this Court denied Plaintiffs’ first motion for a TRO. Dkt. No. 33.

15 The Court held that Plaintiffs did not meet their burden to make a clear showing that they are
16 likely to succeed on the merits or that they are likely to suffer from irreparable harm. Id., at 4.
17 The Court did not identify a Fifth Amendment violation. The Court found that “Plaintiffs’
18
19 current confinement does not appear excessive” in relation to ICE’s legitimate governmental

20 objective in “preventing detained aliens from absconding and ensuring that they appear for

21 removal proceedings.” Id., at 5. The Court further stated that even if there was a due process
22 violation, Plaintiffs failed to provide authority justifying immediate release as requested. Id. In 23
finding Plaintiffs failed to show that they are likely to suffer from irreparable harm, the Court 24
noted, “There is no evidence of an outbreak at the detention center or that Defendants’ 25
26 precautionary measures are inadequate to contain such an outbreak or properly provide medical

27 care should it occur.” Id., at 6.

28

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1

As described above, there has been no identified cases of COVID-19 at NWIPC since

2 the Court’s Order, and Plaintiffs still fail to show that Defendants’ precautionary measures are

3 inadequate to contain infected individuals or properly provide medical care should it occur.
4
III. OBJECTIONS TO PLAINTIFFS’ DECLARATIONS 5

6

Defendants object to the declaration of Andrew Lorenzen-Strait. Dkt. No. 40. Mr.

7 Lorenzen-Strait is a former DHS employee, and as such, any testimony he provides related to

8 DHS is subject to DHS’s “Touhy” regulations at 6 C.F.R. § 5.41, et seq. Mr. Lorenzen-Strait

9 does not speak on behalf of DHS. He did not seek, nor did DHS grant, permission for him to
10 provide testimony on the topics in his declaration. See Lambert Decl., Ex. B. Moreover, as
11 Mr. Lorenzen-Strait recognizes, ICE is vested with discretion to release certain individuals
12 13 from detention. Lorenzen Decl., ¶ 3. The observations of this former DHS employee as to how
14 ICE exercised its discretion in past years are not instructive in deciding Plaintiffs’ request,

15 which asks this Court to override ICE’s statutory and regulatory discretion and order Plaintiffs
16 released. 17
Defendants recognize that the COVID-19 public health emergency has made it difficult 18
for Plaintiffs’ counsel to obtain signed declarations from Plaintiffs. That does not change the 19 20 fact that the declarations purporting to demonstrate Plaintiffs’ health and the conditions at the

21 detention facilities are inherently unreliable.

22

In this regard, Defendants object to the declarations of Emma Rekart, Dkt No. 41, and

23 Alejandra Gonza, Dkt. No. 42, as being replete with hearsay and/or not based on the personal
24 knowledge of the declarant. The Court should afford little or no weight to these unreliable
25
26 declarations. Courts may, in their discretion, give some weight to hearsay and otherwise

27 inadmissible evidence when considering whether to issue emergency relief. See, e.g., Republic

28 of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988); Flynt Distrib. Co., Inc. v.

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1 Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). The above declarations warrant little or no
2 weight because they are significantly lacking in foundational support and other indicia of 3
reliability. 4
Likewise, the declarant physicians lack a sufficient factual basis about the current 5
6 conditions at NWIPC, and therefore any specialized opinions about NWIPC’s conditions hold

7 little weight. Opinions based on scientific, technical, or specialized knowledge are governed by

8 Rule 702. Importantly, Rule 702 requires the trial judge to ensure that expert opinions are not
9 only relevant, but also reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
10 589 (1993). To be reliable, the underlying facts or data upon which an expert relies must be
11 12 reliable; when an expert does not cite factual support for their opinion, it lacks indicia of
13 reliability. United States ex rel. Jordan v. Northrop Grumman Corp., No. CV 95-2985 ABC

14 (EX), 2003 WL 27366247, at *3 (C.D. Cal. Feb. 24, 2003) (finding the expert testimony

15 unreliable because it amounted to “conclusory opinions lacking any factual basis.”).
16 In addition, the physicians that wrote to Congress are not DHS’s experts in this matter,
17 contrary to Plaintiffs’ assertions otherwise. Lambert Decl., Ex. C. And the physicians’ letter to
18
19 Congress is an unsworn statement, thereby lacking indicia of reliability. Northrop Grumman

20 Corp., 2003 WL 27366247, at *3. Because the physicians’ declarations do not rely on

21 sufficient facts and data, this Court should afford them little to no weight.

22

IV. LEGAL STANDARD

23 The standard for issuing a temporary restraining order is “substantially identical” to the
24

standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & 25

26 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “It frequently is observed that a preliminary

27 injunction is an extraordinary and drastic remedy, one that should not be granted unless the

28

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1 movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520
2 U.S. 968, 972 (1997) (emphasis in original) (internal quotations omitted); Winter v. Nat. Res. 3
Def. Council, Inc., 555 U.S. 7, 22 (2008). In moving for a temporary restraining order or a 4
preliminary injunction plaintiffs “must establish that [they are] likely to succeed on the merits, 5
6 that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the

7 balance of equities tips in [their] favor, and that an injunction is in the public interest.” Id.

8

The Ninth Circuit has adopted a “sliding scale” test for issuing preliminary injunctions,

9 under which “serious questions going to the merits and a hardship balance that tips sharply
10 towards the plaintiff can support issuance of an injunction, assuming the other two elements of
11
12 the Winter test are also met.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

13 (9th Cir. 2011) (emphasis added). Thus, Plaintiffs must show that the injunction or TRO is in

14 the public interest and that there is a likelihood, not merely a possibility of irreparable injury.

15 See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
16 However, “[w]here a party seeks mandatory preliminary relief that goes well beyond
17 maintaining the status quo pendente lite, courts should be extremely cautious about issuing a
18
19 preliminary injunction.” Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th

20 Cir. 1984); see also Committee of Cent. American Refugees v. Immigration & Naturalization

21 Service, 795 F.2d 1434, 1442 (9th Cir. 1986). For mandatory preliminary relief to be granted
22 Plaintiffs “must establish that the law and facts clearly favor [thei]r position.” Garcia v. 23
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (emphasis in original). 24

25

26

27

28

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1

V. ARGUMENT

2

The Court should again deny Plaintiffs’ Motion for TRO as they have failed to establish

3 standing,2 a likelihood of success on the merits, and the suffering of irreparable harm. As well,
4
Plaintiffs have not established that public interest weighs decidedly in their favor. 5

6 Accordingly, and for reasons further discussed below, Defendants respectfully request that the

7 Court deny Plaintiffs’ request for a TRO.

8 A. Plaintiffs do not satisfy the requirements for preliminary relief.
9 Likelihood of success on the merits is a threshold issue: “[W]hen ‘a plaintiff has failed
10 to show the likelihood of success on the merits, [the court] need not consider the remaining
11 12 three [elements].’” Garcia, 786 F.3d at 740 (quoting Ass’n des Eleveurs de Canards et d’Oies
13 du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013)) (internal quotation marks omitted).

14 Plaintiffs’ constitutional claims are unlikely to succeed on the merits. Plaintiffs allege that any

15 confinement of an individual more susceptible to COVID-19 due to age or medical affliction

16

violates the Constitution.3 Plaintiffs in effect invite the Court to recognize a due process right

17

to immediate, discretionary release. Plaintiffs have no such due process right. 18

19

20

21

2 Standing is being addressed in a separate reply in response to Plaintiffs’ response to the Court’s Order

22

to Show Cause. Dkt. No. 46.

23

3 Plaintiffs ostensibly request relief on behalf of all individuals at a heightened risk for COVID-19. Pet., Prayer for Relief, ¶ c. Yet Plaintiffs have not obtained class certification or even filed a motion to do so.

24

Moreover, Plaintiffs make no attempt to comply with the requirements of Federal Rule of Civil

Procedure 23, which establishes the prerequisites for a suit to be maintained as a class action. See Wal-

25 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (individuals seeking to bring a class action must satisfy “four requirements—numerosity, commonality, typicality, and adequate representation”);

26 Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). Without satisfying Rule 23,

Plaintiffs cannot justify “an exception to the usual rule that litigation is conducted by and on behalf of

27 the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979). As such,

their claims for sweeping relief should be dismissed as improperly pleaded. 28

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1

1. Denial of Discretionary Relief to which Plaintiffs Lack a Legitimate

2

Claim of Entitlement Does not Violate Due Process.

3

As Plaintiffs acknowledge, they seek—and claim a due process interest in—an exercise

4 of “discretion to release.” Compl. ¶¶74-75. Therefore, the question is whether Plaintiffs have a

5 due process right to a discretionary grant of parole for “urgent humanitarian reasons or

6 significant public benefit” under 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b),
7 235.3. Compl. ¶74. Plaintiffs do not have such a right.4
8

9

As a threshold matter this Court is without jurisdiction to review Defendants’ decision

10 to grant or deny parole. Title 8 U.S.C. § 1182(d)(5) grants the Attorney General discretion to

11 “parole [aliens] into the United States temporarily under such conditions as he may prescribe.”
12 Because the authority for the parole decision is specified to “be in the discretion of the Attorney 13
General,” 8 U.S.C. § 1252(a)(2)(B)(ii) strips all courts of jurisdiction to review it. 14
Moreover, to claim a due process interest, Plaintiffs must first allege a legitimate claim 15
16 of entitlement to a liberty or property interest. Where the benefit sought is discretionary, there

17 can be no due process claim to it. At issue in this case is Plaintiffs’ claim of a liberty interest in

18 a discretionary grant of humanitarian parole. Title 8 U.S.C. § 1182(d)(5)(A) provides that the

19

Attorney General5 may “in his discretion parole into the United States temporarily under such

20
conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or 21

22

4 Plaintiffs make no effort to distinguish between aliens detained under 8 U.S.C. § 1226(c) and 1231,

23

which mandate detention and others detained under 1225 and 1226(a) for whom discretionary release is

24

available. Congress has expressly prohibited release for individuals detained under 8 U.S.C. § 1226(c) or 1231.

25 5 On March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist as an
26 independent agency within the Department of Justice, and its functions were transferred to the newly formed Department of Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub. L. No.
27 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). The INS was divided into three separate
agencies, ICE, Customs and Border Protection (“CBP”), and Citizenship and Immigration Services 28 (“USCIS”).

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1 significant public benefit any alien applying for admission…” 8 U.S.C. § 1182(d)(5)(A). The
2 Supreme Court has made clear that “a benefit is not a protected entitlement if government 3
officials may grant or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 4
748, 756 (2005); see also Appiah v. United States INS, 202 F.3d 704, 709 (4th Cir. 2000) 5
6 (“Because suspension of deportation is discretionary, it does not create a protectable liberty or

7 property interest.”).

8

The Ninth Circuit has already determined that parole under § 1182(d)(5)(A) is

9 discretionary, and “[could] discern no substantive liberty or property interest… in temporary
10 parole status[.]” Kwai Fun Wong v. United States INS, 373 F.3d 952, 968 (9th Cir. 2004). For
11
12 that reason, the Ninth Circuit concluded “there is no statutorily created protected interest in

13 parole.” Wong, 373 F.3d at 968 (“The INA does not create any liberty interest in temporary

14 parole that is protected by the Fifth Amendment. Rather, the statute makes clear that whether

15 and for how long temporary parole is granted are matters entirely within the discretion of the
16 [Secretary of Homeland Security].”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003)
17 (“Since discretionary relief is a privilege created by Congress, denial of such relief cannot
18
19 violate a substantive interest protected by the Due Process Clause.”); Regents II, 298 F. Supp.

20 3d at 1310 (“Our court of appeals has accordingly held there is no protected interest in

21 temporary parole, since such relief is ‘entirely within the discretion of the [Secretary of
22 Homeland Security].’ . . . [This] foreclose[s] any argument that plaintiffs have a protected 23
interest in . . . advance parole[.]”) (citing Wong, 373 F.3d at 967-68). “The INA does not create 24
any liberty interest in temporary parole that is protected by the Fifth Amendment.” Wong, 373 25
26 F.3d at 968. Accordingly, because Plaintiffs have no liberty interest to assert with regard to

27 discretionary parole, they can state no claim for release.

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1

2. ICE’s robust preventative measures against COVID-19 do not violate

2

the Fifth Amendment.

3

In its Order denying Plaintiffs’ first motion for a TRO, this Court stated that to evaluate

4 the constitutionality of detention under the Fifth Amendment, a district court must determine

5 whether pretrial detention conditions “amount to punishment of the detainee.” Order, at 4.
6 The Court specifically described punishment as an “express intent or a restriction or condition
7 that is not reasonably related to a legitimate governmental objective.” Id. (internal quotation
8
9 marks omitted). The Court found no express intent alleged; and cited Supreme Court precedent

10 finding detention during immigration proceedings as a legitimate governmental objective. Id.

11 The Court specifically found that Plaintiffs failed to cite to any authority “that detention itself
12 becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak. 13
Plaintiffs attempt to rectify this failure by citing to a recent Ninth Circuit order and 14
various other orders from other courts and localities. Mot., at 12-13. However, these cases are 15
16 distinguishable in that none of them involve NWIPC. Moreover, the Ninth Circuit order does

17 not hold that continued detention would violate the detainee’s Fifth Amendment due process

18 right.6 Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th Cir. March 24, 2020).
19 Plaintiffs continue to rely on Helling v. McKinney, 509 U.S. 25 (1993), to contend that their
20 allegation of potential medical complications should they be exposed to COVID-19 satisfies the
21
22 objective element of their due process claim. Mot., at 15. However, as this Court noted in its

23

24

6 While the Xochihua-Jaimes order was initially designated “for publication,” the Ninth Circuit has

corrected that designation, stating that the order has not been selected for publication, and is subject to

25 Ninth Circuit Rule 36-3. See 2020 WL 1429877. Under Ninth Circuit Rule 36-3, unpublished orders

such as this are not precedent. In any event, even if the Xochihua-Jaimes order could be cited as

26 precedent, it contains no discussion or analysis of any facts specific to the petitioner or immigration

detention center in that case that might prove instructive in the instant case. The order was also issued 27 sua sponte, without the benefit of briefing from either party on any claim for release based on COVID-

19, or on the factual specifics related to such a claim. 28

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1 order denying Plaintiffs’ first TRO motion, Helling is clearly distinguishable. The injury in
2 Helling was premised on the prisoner’s actual exposure to smoke, not the facility’s location in 3
an area with a high incidence of heavy smokers and the speculative likelihood that one of those 4
smokers would one day share a cell with the petitioner, adversely impacting his health. 5
6 Plaintiffs would have this Court find the latter cognizable. At base, Plaintiffs do not allege that

7 they are exposed to COVID-19 in NWIPC.

8

More importantly, Plaintiffs do not even address or argue that the Government has acted

9 with deliberate indifference. Nor could they. ICE has gone to great lengths to implement
10 procedures and protocols to protect its staff and the detainees in their care, including at
11
12 NWIPC. They have set up screening procedures to identify and isolate potentially infected

13 individuals, in accordance with CDC guidance, to avoid the mingling of infected with

14 uninfected inmates at issue in Hutto and Gates. Second Rivera Decl., ¶¶ 8-10. They have

15 provided staff with guidance on the use of personal protective equipment including N95 masks
16 and available respirators. Dkt. No. 31, Rivera Decl., ¶7. The lack of any confirmed COVID-19
17 cases at any IHSC-staffed facility nationwide, including NWIPC, underscores the effectiveness
18
19 and care the Government has taken to protect vulnerable detainees. Id., ¶17.

20

3. Plaintiffs have not shown deliberate indifference.

21

The Ninth Circuit has made clear that the deliberate indifference requirement extends

22 beyond Eighth Amendment claims to conditions of confinement claims brought under the Due
23 Process Clause by pretrial detainees who enjoy a presumption of innocence, describing
24
25 deliberate indifference as “akin to reckless disregard.” Castro v. County of Los Angeles, 833

26 F.3d 1060, 1068-71 (9th Cir. 2016) (en banc) (“[There is] a single ‘deliberate indifference’ test

27 for plaintiffs who bring a constitutional claim—whether under the Eighth Amendment or the

28

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1 Fourteenth Amendment.”); see also Gordon v. County of Orange, 888 F.3d 1018 (9th Cir.
2 2018). Rather than address deliberate indifference, Plaintiffs argue that individuals in civil 3
detention, including those in immigration detention, enjoy broader constitutional protections 4
than criminal detainees, therefore there is no need to show deliberate indifference. Mot., at 15 5
6 n.12.

7

Plaintiffs cite to the Ninth Circuit’s decision in Jones v. Blanas, 393 F.3d 918 (9th Cir.

8 2004), for the proposition that the Constitution entitles them “to conditions of confinement that
9 are superior to those of convicted prisoners.” Mot., at 14. First, Plaintiffs disregard decades of
10 Supreme Court precedent finding that immigration detainees enjoy fewer constitutional
11 12 protections than the civilly detained U.S. citizen in Jones. See, e.g., Mathews v. Diaz, 426 U.S.
13 67, 79–80 (1976) (“In the exercise of its broad power over naturalization and immigration,

14 Congress regularly makes rules that would be unacceptable if applied to citizens.”); Demore v.

15 Kim, 538 U.S. 510, 521 (2003); Reno v. Flores, 507 U.S. 292, 305–306 (1993); Fiallo v. Bell,
16 430 U.S. 787, 792 (1977); United States v. Verdugo–Urquidez, 494 U.S. 259, 273 (1990).
17 Second, even applying the standard proposed by Plaintiffs, they still fail to raise a
18
19 colorable constitutional claim. Jones held that “an individual detained under civil

20 process…cannot be subjected to conditions that amount to punishment.” Jones, 393 F.3d at

21 932. Jones also held that civil confinement is presumptively punitive, and therefore
22 unconstitutional if the conditions are “identical to, similar to, or more restrictive than, those in 23
which his criminal counterparts are held.” Id. at 932. If the presumption applies, the burden 24
shifts to the defendant to show “legitimate, non-punitive interests justifying the conditions of 25
26 [the detainee’s] confinement” and “that the restrictions imposed ... [are] not ‘excessive’ in

27 relation to these interests.” Id. at 935. In the immigration context, the Supreme Court has

28

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1 consistently upheld the constitutionality of detention, citing the Government’s legitimate
2 interest in protecting the public and preventing aliens from absconding into the United States 3
and never appearing for their removal proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830, 4
836 (2018); Demore, 538 U.S. at 520-22; Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). 5
6 Nor is detention pending removal an “excessive” means of achieving those interests. The

7 Supreme Court for over a century has affirmed detention as a “constitutionally valid aspect of

8 the deportation process.” Demore, 538 U.S. at 523 (listing cases).
9 Having established that there is a legitimate interest in continued detention, the focus
10 turns to the “conditions of confinement” in the civil detention context. “Prison officials must
11 12 provide humane conditions of confinement and must take reasonable measures to guarantee the
13 safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Ninth Circuit “ha[s]

14 long analyzed claims that government officials failed to address pretrial detainees’ medical

15 needs using the same standard as cases alleging that officials failed to protect pretrial detainees

16 in some other way.” Gordon, 888 F.3d at 1124. The elements of a civil detainee’s medical
17 care claim under the due process clause of the Fourteenth Amendment are:
18

19

(i) the defendant made an intentional decision with respect to the conditions under

which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial

20

risk of suffering serious harm; (iii) the defendant did not take reasonable available

measures to abate that risk, even though a reasonable official in the circumstances

21

would have appreciated the high degree of risk involved—making the

22

consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

23 Gordon, 888 F.3d at 1125. “The mere lack of due care by a state official does not deprive an
24

individual of life, liberty, or property under the Fourteenth Amendment.” Id. As civil 25

26 detainees, Plaintiffs “prove more than negligence but less than subjective intent—something

27 akin to reckless disregard.” Id. (quoting Castro, 833 F.3d at 1071). “The ‘more protective’

28

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1 Fourteenth Amendment standard requires more than minimal necessities, but does not require

2 conditions of confinement free from discomfort” or from risks inherent to a detention setting.
3 Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 U.S. Dist. LEXIS 27890, at
4 *8 (D. Ariz. Feb. 19, 2020) (citing Jones, 393 F.3d at 932)).
5

6

The record demonstrates that Defendants have taken substantial efforts to provide a safe

7 and sanitary environment for those housed at NWIPC. Rivera Decl., ¶¶ 5, 8, 11-15; Second

8 Rivera Decl., ¶¶ 8-12. Plaintiffs take issue with the measures that Defendants have taken to
9 prevent and/or stymie any potential spread of COVID-19 in Defendants’ facilities because
10 those measures do not include release. Plaintiffs, in essence, argue that if Defendants cannot do
11 12 what Plaintiffs’ describe as “virtually impossible[,]” (Mot., at 5) any confinement per se
13 violates Plaintiffs’ constitutional rights. This is not so. As civil detainees, Plaintiffs “must

14 show” that the precautions taken to prevent a COVID-19 are “objectively unreasonable.”

15 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). “Prison regulations . . . are judged
16 under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged
17 infringements of fundamental constitutional rights[.]” O’Lone v. Estate of Shabazz, 482 U.S.
18
19 342, 349 (1987). This “reasonableness” test is applicable in both the civil and criminal

20 detention contexts. Riggins v. Nevada, 504 U.S. 127, 135 (1992).

21

Plaintiffs’ claim that anything less than preventing the “virtually impossible” is a

22 constitutional violation is unfounded. Plaintiffs’ demands of absolute perfection in preventive
23 medicine and a warranty of good heath have never been required under the constitution. Sacal-
24 Micha v. Longoria, No. 1:20-CV-37, 2020 U.S. Dist. LEXIS 53474, at *15 (S.D. Tex. Mar. 27,
25

26 2020) (“the fact that ICE may be unable to implement the measures that would be required to

27 fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and

28

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1 does not warrant his release”). In Kingsley, the Supreme Court made clear that the due process
2 test for conditions of civil confinement is an objective one based on reasonableness. 3
Inherently, reasonableness has limits. “[A] court must take account of the legitimate interests 4
in managing a jail, acknowledging as part of the objective reasonableness analysis that 5 6 deference to policies and practices needed to maintain order and institutional security is
7 appropriate.” Kingsley, 135 S. Ct at 2474. The requirement under the Fifth and Eighth
8 Amendments that Defendants must provide “safe and sanitary” conditions to those in custody 9
are not—nor could they be—guarantees against injury or infirmary during government custody. 10
While the government is obliged to make reasonable efforts to provide healthy conditions, 11 12 detention facilities do not operate in a sphere of strict liability. Steading v. Thompson, 941 F.2d
13 498, 499 (7th Cir. 1991) (“neither negligence nor strict liability is the appropriate inquiry in
14 prison-conditions cases.”). Rather, Plaintiffs must show that Defendants have acted with
15 objective disregard, and that this disregard has caused the conditions in which they are housed 16
to become objectively unreasonable and unsafe. Kingsley, 135 S. Ct. at 2473; see also Carroll 17
v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) (“Many Americans live under conditions of 18 19 exposure to various contaminants. The [Constitution] does not require prisons to provide
20 prisoners with more salubrious air, healthier food, or cleaner water than are enjoyed by
21 substantial numbers of free Americans.”). Plaintiffs are not relieved of their burden of proof by
22 simply citing to the pandemic. Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 U.S. Dist. 23
LEXIS 53474, at *15 (S.D. Tex. Mar. 27, 2020). 24
Here, Defendants have taken numerous reasonable precaution to prevent the outbreak of 25 26 COVID-19 in its facilities, and have action plans in place to prevent the spread of COVID-19 if
27 it is introduced to NWIPC. Rivera Decl., ¶¶ 11-12; Second Rivera Decl., ¶ 10. The fact that
28

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1 Plaintiffs’ medical experts insist on release does not show that Defendants’
2 preventive/precautionary measures are unreasonable. At most, Plaintiffs’ medical experts 3
express disagreement with any detention, but do not speak to how Defendants’ actions 4
constitute deliberate indifference if detention is maintained. “Deliberate indifference is a high 5
6 legal standard; a difference of opinion concerning treatment, negligence, or medical

7 malpractice does not amount to deliberate indifference.” McGinnis v. Lopez, No. 19-00625

8 DKW-WRP, 2020 U.S. Dist. LEXIS 41882, at *9 (D. Haw. Mar. 11, 2020). Even if
9 Plaintiffs—without evidence—genuinely believe that release into the “Seattle, Washington
10 metropolitan area, the center of one of the largest known outbreaks in the United States” (Mot.
11 12 at 5) is, for whatever reason, the better preventive medicine practice, this opinion represents
13 little more than a difference in approaches to preventive treatment, and does not demonstrate

14 deliberate indifference on Defendants’ part. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

15 1996) (“a plaintiff’s showing of nothing more than ‘a difference of medical opinion’ as to the

16 need to pursue one course of treatment over another was insufficient, as a matter of law, to
17 establish deliberate indifference.”).
18

19

Defendants have expended good faith efforts to provide safe and sanitary conditions to

20 those within its care at NWIPC. See Rivera Decl. ¶¶ 5, 8, 11-15; Second Rivera Decl. ¶¶ 8-12.

21 Good faith efforts and deliberate indifference are mutually incompatible findings. Kingsley,
22 135 S. Ct. at 2474 (“the use of an objective standard adequately protects an officer who acts in 23
good faith….”). The fact that Defendants have taken extensive precautionary measures 24
demonstrates that Defendants have not been deliberately indifferent to Plaintiffs’ health. Sacal25
26 Micha, 2020 U.S. Dist. LEXIS 53474, at *11-12 (“the record reflects that ICE has provided

27 constant medical attention to Sacal, and has implemented preventative measures to reduce the

28

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1 risk of Sacal contracting COVID-19. Those measures may ultimately prove insufficient. But

2 the implementation of those measures preclude a finding that ICE has refused to care for Sacal
3 or otherwise exhibited wanton disregard for his serious medical needs.”).
4
5 B. Plaintiffs have not shown irreparable harm.

6

This Court held that Plaintiffs failed to show the likelihood of suffering an irreparable

7 harm in the absence of an injunction. Order, at 6. The Court specifically found that Plaintiffs

8 had not shown evidence of an outbreak at NWIPC, nor that Defendants’ precautionary methods

9 were insufficient to contain an outbreak, nor that Defendants could not provide proper medical
10 care if an outbreak should occur. Id. Plaintiffs’ second motion similarly fails.
11

12

The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking

13 preliminary relief to demonstrate that irreparable injury is likely in the absence of an

14 injunction.” Winter, 555 U.S. at 22 (emphasis in original). “Issuing a preliminary injunction
15 based only on a possibility of irreparable harm is inconsistent with our characterization of 16
injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing 17 18 that the plaintiff is entitled to such relief.” Id. Conclusory or speculative allegations are not
19 enough to establish a likelihood of irreparable harm. Herb Reed Enters., LLC v. Florida Entm’t

20 Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013); see also Caribbean Marine Servs. Co. v.

21 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable

22 injury sufficient to warrant granting a preliminary injunction.”); Am. Passage Media Corp. v.
23 Cass Commc’ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (finding irreparable harm not
24
25 established by statements that “are conclusory and without sufficient support in facts”).

26

As stated above, Plaintiffs allege that only release from NWIPC into Seattle, the

27 epicenter of the American COVID-19 crisis, will spare them the heightened risk of adverse

28

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1 consequences from COVID-19 due to their pre-existing conditions. This is not only
2 speculative, but it is unlikely. Plaintiffs do not explain how they will suffer irreparable harm in 3
the absence of an order requiring their release, given that Plaintiffs’ existing medical care 4
would be interrupted if not ended as a consequence of their release. 5
6 C. The balance of interests and public interest favor Defendants.

7

It is well-settled that the public interest in enforcement of United States immigration

8 laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s
9 House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has
10 recognized that the public interest in enforcement of the immigration laws is significant.”); see
11
12 also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt

13 execution of removal orders: The continued presence of an alien lawfully deemed removable

14 undermines the streamlined removal proceedings IIRIRA established, and permit[s] and
15 prolong[s] a continuing violation of United States law.” (internal marks omitted)). As 16
discussed above, the harm that Plaintiffs allege is based on fear of the possibility of contracting 17 18 COVID-19. Notably, Plaintiffs omit any discussion of the legitimate governmental objective in
19 detaining aliens who are in removal proceedings. See, e.g., Demore, 538 U.S. at 513. These

20 interests are to protect the community (including, sometimes, protecting detainees from

21 themselves) and prevent absconding so that they appear for their immigration court hearings.
22 Id. at 515.
23 Plaintiffs ask the Court to order Defendants to declare unconstitutional the detention of
24 25 “all people over fifty years old and [all] persons of any age with underlying medical

26

27

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1 conditions[.]” Compl. at 20.7 Given the vast expanse and indiscriminate nature of Plaintiffs’
2 requested order, the balance of interests clearly favors Defendants. The disruptive effect of 3
such an order would long survive the COVID-19 pandemic, and would serve to release many 4
detainees slated for removal back into the general public. Moreover, the public interest is best 5
6 served by allowing the orderly medical processes and protocols implemented by government

7 professionals. See Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982) (urging judicial

8 deference and finding presumption of validity regarding decisions of medical professionals
9 concerning conditions of confinement). This type of burden and attendant harm, and its
10 potential impact on ICE operations nationwide, is too great to be permissible at this preliminary
11 12 stage. Because Plaintiffs cannot show that the balance of hardships and public interest tips in
13 their favor, the Court should deny Plaintiffs’ request for preliminary relief.

14 CONCLUSION
15

16

Plaintiffs have not satisfied their high burden of establishing entitlement to mandatory

17 injunctive relief, and their Motion for a Temporary Restraining Order should be denied.

18 DATED this 30th day of March, 2020.

19

Respectfully submitted,

20

BRIAN T. MORAN

21

United States Attorney

22

23

/s/ Michelle R. Lambert

MICHELLE R. LAMBERT NY#4666657

24

Assistant United States Attorney

1201 Pacific Avenue, Suite 700

25

Tacoma, WA 98402

26 7 Considering that ICE detains many individuals that fall into this sweeping category and provides for
27 their medical care, the Court should consider carefully what effect such a release order would impose on the public at a time when states are struggling to provide healthcare resources to address the COVID-19
28 pandemic.

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Telephone No. (253) 428-3824 E-mail michelle.lambert@usdoj.gov Attorneys for Government
700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970
27

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1

The Honorable James L. Robart

2

The Honorable Mary Alice Theiler

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON 8

9

KARLENA DAWSON; ALFREDO ESPINOZA- Case No. 20-0409

10

ESPARZA; NORMA LOPEZ NUNEZ; MARJORIS RAMIREZ-OCHOA; MARIA

JLR-MAT

11

GONZALEZ-MENDOZA; JOE HLUPHEKA

BAYANA; LEONIDAS PLUTIN HERNANDEZ; DEFENDANTS’ REPLY TO

12

KELVIN MELGAR-ALAS; JESUS GONZALEZ PLAINTIFFS’ RESPONSE TO

HERRERA, 13

THE COURT’S ORDER TO SHOW CAUSE

14

Petitioners-Plaintiffs,

15

v.

16

NATHALIE ASHER, Director of the Seattle Field

17

Office of U.S. Immigration and Customs

Enforcement; MATTHEW T. ALBENCE, Deputy

18

Director and Senior Official Performing the Duties

of the Director of the U.S. Immigration and

19

Customs Enforcement; U.S. IMMIGRATION AND

20

CUSTOMS ENFORCEMENT; STEPHEN LANGFORD, Warden, Tacoma Northwest ICE

21

Processing Center,

22

Respondents-Defendants.

23

24

I. INTRODUCTION

25

COMES NOW the Federal Defendants, by and through their attorneys, Brian T. Moran,

26 United States Attorney for the Western District of Washington, and Michelle R. Lambert,
27

28

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1 Assistant United States Attorney for said District, submit this Reply to Plaintiffs’ Response to
2 the Order to Show Cause. Dkt. No. 46 (“OSC Resp.”). 3
Plaintiffs’ response to the Order to Show Cause fails to demonstrate their standing in 4
this litigation. Plaintiffs allege that their Fifth Amendment rights are violated by their very 5
6 detention. Pet., ¶ 84. In their response to this Court’s order, Plaintiffs ignore the procedures

7 and protocols implemented by Immigration and Customs Enforcement (“ICE”) within

8 Northwest ICE Processing Center (“NWIPC”). Plaintiffs also fail to acknowledge the fact

9 that NWIPC has not had an identified COVID-19 infection. Instead, as the basis for standing,
10 Plaintiffs rely on generalizations concerning detention facilities by “experts” that do not attest
11
12 to having ever visited NWIPC.

13

II. ARGUMENT

14

A. Plaintiffs May Not Challenge The Conditions Of Their Confinement Through

A Habeas Petition Seeking Immediate Release. 15

Plaintiffs assert that they have met the jurisdictional requirements for a habeas claim. 16

17 OSC Resp., at 2. Contrary to Plaintiffs’ assertions that they are not challenging their conditions

18 of confinement, that is the central focus of this litigation. Specifically, whether their detention

19 exposes them to a higher risk of exposure to COVID-19. Plaintiffs have not shown that the
20 medical staff at the facilities are failing to treat medical conditions that are known to them. Nor 21
do Plaintiffs ask this Court to order any different medical treatment or sanitation practices for 22
detainees at NWIPC. Instead, Plaintiffs argue that the only valid method of protection is 23
24 release. Id. To do so, Plaintiffs must demonstrate that the conditions at NWIPC are

25 insufficient to protect them. Accordingly, Plaintiffs are making a conditions-of-confinement

26 claim.
27 A petition for habeas relief seeking immediate release is inappropriate in the context of
28

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1 a conditions-of-confinement claim. “[T]he writ of habeas corpus is limited to attacks upon the
2 legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). “It 3
is a well-settled general principle that a habeas petition is the appropriate means to challenge 4
the ‘actual fact or duration’ of one's confinement, whereas a civil rights claim is the proper 5
6 means to challenge the ‘conditions’ of one's confinement. Kamara, v. Farquharson, 2 F. Supp.

7 2d 81, 88 (D. Mass. 1998) (citing Heck v. Humphrey, 512 U.S. 477, 481 (1994) and Viens v.

8 Daniels, 871 F.2d 1328, 1333 (7th Cir.1989)). In Crawford, the Ninth Circuit held that
9 “release from confinement” was not the appropriate remedy to address the petitioner’s claims
10 “alleg[ing] that the terms and conditions of [petitioner’s] incarceration constitute[d] cruel and
11 12 unusual punishment” and “violated his due process rights.” Id. at 891-92. Such a claim must
13 be brought as a civil rights claim, that if proven, would be remedied by “a judicially mandated

14 change in conditions and/or an award of damages.” Crawford, 599 F.2d at 892. Thus, because

15 Plaintiffs do not assert any illegality or impermissible duration of confinement, their petition

16 for habeas relief, and the remedy of immediate release, are both inappropriate.
17 A. Plaintiffs lack standing.
18

19

“Standing to sue is a doctrine rooted in the traditional understanding of a case or

20 controversy. The doctrine developed in our case law to ensure that federal courts do not exceed

21 their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
22 1547 (2016). The “irreducible constitutional minimum of standing” contains three 23
requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must 24
have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) 25
26 concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

27 Id. Second, the injury has to be “fairly . . . trace[able] to the challenged action of the defendant,

28

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1 and not . . . the result [of] the independent action of some third party not before the Court.” Id.

2 Third, it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed
3 by a favorable decision.” Id. at 560-61 (internal citations omitted). Plaintiffs do not raise a
4
cognizable injury traceable to Defendants, nor is the alleged injury redressable by this Court. 5

6

1. Plaintiffs lack injury in fact.

7

To establish injury in fact, a plaintiff must show that he or she suffered “‘an invasion of

8 a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
9 conjectural or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560.
10 Injury in fact is a “constitutional requirement” and is the “[f ]irst and foremost” of standing’s
11
12 three elements. Id. at 1547-48 (quoting Steel Co. v. Citizens for Better Environment, 523 U. S.

13 83, 103 (1998)). To be “particularized” the injury “must affect the plaintiff in a personal and

14 individual way.” Lujan, 504 U.S. at 560 n.1. “Particularization is necessary to establish

15 injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’” Spokeo, Inc,
16 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it must actually exist[,]”
17
18 that is, it must be “real,” and not “abstract.” Id.

19

While “the risk of real harm” may, in some circumstances, be sufficiently concrete,

20 “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged

21 injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending,’”
22 Lujan, 504 U.S. at 568; see Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (“The
23 common definition of ‘imminent,’ however, does not refer only to events that are already
24 25 taking place, but to those events ready to take place or hanging threateningly over one’s
26 head.”).

27

28

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1

Plaintiffs define their particularized harm as “exposure to a lethal harm that is

2 particularly dangerous to them, with no vaccine or cure. OSC Resp., at 3. Plaintiffs concede
3 that harm cannot be “imaginary or speculative.” Id. However, Plaintiffs’ assertion that
4
detention at NWIPC poses a substantial risk to them contracting COVID-19 remains 5

6 speculative. No COVID-19 cases have been identified at NWIPC. Moreover, ICE has

7 expended extensive resources and efforts to address the very issues that Plaintiffs have

8 identified. See generally Bostock Decl.; Dkt. 31, Rivera Decl.; Second Rivera Decl.
9 Plaintiffs’ response to the order to show cause brings very little new to the table.
10 Plaintiffs’ claims of future injury remain hypothetical. Plaintiffs have not alleged that COVID-
11 12 19 has spread to the NWIPC facility since the Court’s order denying their first motion for a
13 TRO. Thus, Plaintiffs are not entitled to immediate release from detention based on a

14 conjectural injury that they have not suffered. An injunction is “unavailable absent a showing

15 of irreparable injury, a requirement that cannot be met where there is no showing of any real or

16 immediate threat that the plaintiff will be wronged [] -- a ‘likelihood of substantial and
17 immediate irreparable injury.’” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
18

19

Moreover, even if COVID-19 were introduced to NWIPC, Plaintiffs have not alleged –

20 nor could they allege – that Defendants are unprepared to respond to that contingency,

21 particularly in light of the known facts concerning ICE’s response to the challenges posed by
22 COVID-19. Dkt. 31, Rivera Decl., ¶¶ 5-17. Moreover, ICE implements its testing in line with 23
the CDC’s recommendations. Second Rivera Decl., ¶ 8. Plaintiffs’ experts have not addressed 24
any alleged deficiencies with the CDC’s recommendations for detention facilities. Plaintiffs 25
26 cannot show, as they must, that there is a “likelihood of substantial and immediate irreparable

27 injury,” Lyons, 461 U.S. at 111, in light of the efforts ICE has made to contain and protect

28

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1 NWIPC detainees from COVID-19 and the lack of a single confirmed case of COVID-19 at the

2 facility. Rivera Decl. ¶17; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013)
3 (finding standing based on fear, even one that is reasonable, “improperly waters down the
4
fundamental requirements of Article III.”). 5

6

In support, Plaintiffs rely on cases in which the alleged conditions existed in the facility

7 at the time of the litigation. OSC Resp., at 6 (citing Helling v. McKinney, 509 U.S. 25, 33

8 (1993) (prisoner housed in cell with ill prisoner); Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir.
9 2014) (alleging inadequate medical care); Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir.
10 1985) (alleging inadequate fire safety standards)). Plaintiffs also rely on cases in other districts
11 12 involving other facilities that have identified cases of COVID-19 infections. However, the
13 analyses of other district courts are not appropriate to determine whether release is warranted at

14 NWIPC. Sacal-Micha v. Longoria, 20-cv-37, 2020 U.S. Dist. LEXIS 53474, at *11-12 (S.D.

15 Tex. Mar. 27, 2020) (“The decisions by other district courts considering similar requests

16 demonstrate the fact-specific nature of the analysis.”).

17

18

2. Even if Plaintiffs could allege an injury, such injury is not fairly traceable to Defendants

19 To meet the standing requirements of Article III, “[a] plaintiff must allege personal
20 injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed
21

22 by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). Plaintiffs allege that their

23 continued confinement places them in “dire jeopardy” and that Defendants could release them

24 at any time. OSC Resp., at 7.

25

As Plaintiffs acknowledge, COVID-19 is a global pandemic and no one and no place is

26 immune, including the area into which they seek release. Dkt. No. 36, Second Motion for a
27

Temporary Restraining Order, at 5, 8 (“Second TRO Mot.”). Neither Defendants, nor any 28

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1 other person or entity, including this Court, can entirely ameliorate the risk of contracting
2 COVID-19. Plaintiffs rely on Bell v. Wolfish, 441 U.S. 520, 535 (1979), and Helling v. 3
McKinney, 509 U.S. 25, 33 (1993), to argue that a condition of confinement for a civil 4
detainees “violates [] constitutional principle where disease and sickness threaten the infection 5 6 of a detained or incarcerated person.” Second TRO Mot., at 14-15. However, Plaintiffs
7 misread these cases – a constitutional violation only occurs where a detainee’s malady is
8 traceable to Defendants’ deliberate indifference to current medical conditions or purposeful 9
ignorance to conditions that are “sure or very likely to cause serious illness.” Helling v. 10
McKinney, 509 U.S. 25, 33 (1993) (“prison authorities may not be deliberately indifferent to an 11 12 inmate's current health problems[, nor can they] ignore a condition of confinement that is sure
13 or very likely to cause serious illness and needless suffering the next week or month or year.”).
14 Plaintiffs’ injury must be traceable to Defendants’ deliberate indifference, not to COVID-19 in
15 and of itself. Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999) (in § 1983 context, 16
noting that the plaintiff’s injury must be shown to be “caused by a defendant's deliberate 17
indifference to that risk” of future injury). Where Plaintiffs have not shown any deliberate 18 19 indifference on the part of Defendants, the risk posed by COVID-19 is more fairly to the nature
20 of pathology of COVID-19 itself, and not Defendants’ conduct. Sacal-Micha, 2020 U.S. Dist.
21 LEXIS 53474, at *11-12 (“ICE … has implemented preventative measures to reduce the risk of
22 Sacal contracting COVID-19. Those measures may ultimately prove insufficient. But the 23
implementation of those measures preclude a finding that ICE has refused to care … or 24
otherwise exhibited wanton disregard for his serious medical needs. In other words, Sacal has 25 26 not demonstrated that the conditions in which ICE maintains him in custody arise to the level of
27 a constitutional violation.”).
28

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1

Plaintiffs are not entitled to – and the government cannot guarantee – absolute safety

2 from COVID-19, or any other illness. ICE, however, has taken robust measures to prevent the
3 spread of COVID-19 in NWIPC. See generally Bostock Decl.; Second Rivera Decl. Plaintiffs’
4
alleged injury if they contract COVID-19 is insufficient to show that this speculative future 5

6 harm is fairly traceable to their detention or lack of release.

7

3. Plaintiffs’ alleged injury—a heightened risk for serious consequences from COVID-

19—is not redressable by release. 8

9

Plaintiffs’ alleged injury—that they are subject to a heightened risk of death or serious

10 illness if they contract COVID-19—will not be redressed by ordering their release.

11 “Redressability requires an analysis of whether the court has the power to right or to prevent
12 the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.).
13 For purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial
14 15 likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of
16 Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted).

17 Plaintiffs’ desired relief—release from detention—will not ameliorate or diminish their claimed
18 heightened risk of injury or death resulting from COVID-19, nor can a court order requiring 19
release prevent Plaintiffs from contracting COVID-19. 20
Plaintiffs allege that only release can adequately address Plaintiffs “right to reasonable 21 22 protection from the lethal contagious disease placing them at grave risk of serious illness and

23 death.” OSC Resp., at 9. Notably, Plaintiffs have not established how release from NWIPC, a

24 facility without a single confirmed case of COVID-19, into “the Seattle, Washington
25 metropolitan area, the center of one of the largest known outbreaks in the United States” will 26
reduce their risk for contracting COVID-19. Second TRO Mot., at 5, 8 (“the Seattle-Tacoma 27
Washington area has been an epicenter of the pandemic in the United States”). Plaintiffs do not 28

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1 claim that, if released, they would have their own space and resources where they could

2 practice prevention methods such as social distancing and increased hygiene. IHSC provides
3 medical care at no cost to detainees at NWIPC, including Plaintiffs. By reason of their
4
detention, Plaintiffs have greater access to robust medical care than the general public. 5

6

Conspicuously missing from Plaintiffs’ voluminous filings are declarations explaining

7 where Plaintiffs would go if released or if those conditions would allow Plaintiffs to practice

8 more robust prevention methods than while detained. See
9 https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html, last visited March25,
10 2020. Absent such showing, Plaintiffs cannot establish redressability. America's Community
11 12 Bankers v. FDIC, 200 F.3d 822, 827 (D.C.Cir.2000) (Plaintiffs must demonstrate redressability
13 by “establish[ing] that it is likely, as opposed to merely speculative, that a favorable decision

14 by this court will redress the injury suffered. ”).

15

CONCLUSION

16 Because Plaintiffs lack standing and have improperly brought their conditions of
17 confinement claims in a habeas petition, Defendants respectfully request the Court to dismiss
18

19 the Petition.

20 DATED this 30th day of March, 2020.

21

22

Respectfully submitted,

23

BRIAN T. MORAN

United States Attorney

24

25

/s/ Michelle R. Lambert

26

MICHELLE R. LAMBERT NY#4666657

Assistant United States Attorney

27

1201 Pacific Avenue, Suite 700

Tacoma, WA 98402 28

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700 Stewart Street, Suite 5200 Seattle, Washington 98101 (206) 553-7970
10

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I

2 Ja

4

I.INITED STATES DISTRICT COURT FOR THE

5

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

6

7

8 KARLENA DAWSON, et al.,

CASE NO. C2O-0409-JLR-MAT

9

Plaintiff,

10

ll

V.

lz NATHALIE ASHER, et a1.,

DECLARATION OF DREW H. BOSTOCK

l3

Defendants.

l4

I, Drew H. Bostock, hereby make the following declaration with respect to the above-

l5 captioned matter:

T6

1. I am an Offrcer in Charge ("OIC") with the Department of Homeland Security

l7 ("DHS"),Immigration and Customs Enforcement ("ICE"), Enforcement and Removal l8
t9 Operations ("ERO") in the Seattle Field Office ("ERO Seattle"). I have held this position since

20 December 2019. Prior to this, I was the Assistant Field Office Director from December 2017 to

2l December 2019. I am currently assigned to the Northwest ICE Processing Center ("NWIPC") in

22 Tacoma, Washington. I have worked in various other positions within ICE since February 2007.

23

2. Among my responsibilities as the OIC, I manage the detained docket for the

24

z5 aliens who are detained at the NWIPC. This declaration is based upon my personal and

26 professional knowledge and information obtained from various records and systems maintained

27 by DHS and The GEO Group, Inc. in the regular course of business. I provide this declaration 28

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - I

LINITED STATES ATTORNEY
7OO STEWART STREET, SUrrE 5220
Srarrre, WasruvcroN 98 I 0 I
(206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 2 of 19

1 based on the best of my knowledge, infonnation, belief, and reasonable inquiry for the above

2 captioned case.

aJ

3. ICE is charged with removing aliens who lack lawful immigration status in the

4

5 United States. Detention is an important and necessary part of immigration enforcement. ICE

6 detains people to secure their presence both for immigration proceedings and their removal, with

7 a special focus on those who represent a risk to public safety, or for whom detention is

8
mandatory by law.

9

l0

Northwest ICE Processing Center ('NWIPC")

11

4. The NWIPC is a private detention center run by The GEO Group, Inc. ("GEO").

t2 GEO is an independent contractor that provides the facility, management, personnel and services
I3 for 24-hour supervision of immigrant detainees in ICE custody at the NWIPC. GEO personnel
t4 l5 are not employed by ICE. The NWIPC operates pursuant to a performance-based contract,
16 which is a results-oriented method of contracting focused on outputs, quality, and outcomes.

t7 Performance-based contracts do not designate how a contractor is to perform the work, but rather

18 establishes the expected outcomes and results that the govemment expects. It is then the

19

responsibility of the contractor to meet the government's requirements.

20

21

5. Medical care at the NWIPC is overseen by the ICE Health Services Corps

22 ("IHSC"), which provides medical services through a combination of U.S. Public Health Service

23 Commissioned Corps ("USPHS") officers, federal cMl servants, and contract health

24 professionals.
25

26

Admissions of Detainees to the NWIPC

27

6. The NWPC has the capacity to house 1,575 detainees and historically often

28 operates near capacity. As of the morning of March 27,2020, however, there are 838 detainees

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 2

TINITED STATES ATTORNEY 700 Srenrerr STREET, SurrE 5220
Srerrrs, Wasm.{cToN 98101 (206\ 553-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 3 of 19

1 currently housed in the facility - i.e. the detainee population at the NWIPC is already reduced to

2 approximately 53.2% of the number of detainees usually housed at the facility.

Ja

7. The last transfer of ICE detainees the NWIPC received from the southern border

4

5 occurred on or about March 5,2020 and ICE does not anticipate any further transfers from the

6 southern border in the reasonably foreseeable future both because the Migrant Protection

7 Protocolsl have significantly reduced the overall numbers of individuals entering into ICE
8
custody from the southern border and because restrictions on border travel instituted as a result 9
l0 of COVID 19. See Fact Sheet: DHS Measures on the Border to Limit the Further Spread of

l1 Coronavirus, March 23,202A, available at: h:tps://www.dhs.qov/news/2020/03l23lfact-sheet-

D dhs-measures-border-limit-further-spread-coronavirus (accessed March 25,2020).

l3

8. On March 18,2020,ICE announced that it would immediately adjust its

t4

enforcement posture to ensure safety in light of the ongoing COVID 19 pandemic to focus its
15

L6 elforcement on public safety risks and individuals subject to mandatory detention based on

l7 criminal grounds. ,Sea Updated ICE Statement on COVID 19, March 18,2020, available at:
t8 https://www.ice.gov/news/releases/updated-ice-statement-covid-19(accessedMarch 25,2O2O). t9
For individuals who do not fall into those categories, ICE is currently exercising its discretion to 20
2t delay enforcement actions until after the COVID 19 crisis or utilize alternatives to detention, as

22 appropiate. Id.

23

9- Due to the shift in ICE's enforcement focus, ICE expects only a limited number

24
of incoming detainees at the NWIPC during the COVID 19 crisis - the majority of whom will be
25

26

27

28 lUlder the Migrant Protection Protocols, aliens who are not nationals or citizens of Mexico who are amving in the

United States their removal

by land from proceedings.

Mexico

may be

returned to

Mexico

pursuant

to

INA

$ 235OX2XC)

for

the

duration

of

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 3

TTNITED STATES ATTORNEY 700 STEWART Srperr, Surrs 5220
SEATTLE, WAs}il.{crou 98 1 0 1 (206\ 5s3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 4 of 19

1 aliens who are public safety risks and those subject to mandatory custody on criminal

2 immigration grounds.2

J

Safetv Measures at the NWIPC: Detainee Admissions 4

5

10. Because ICE exercises significant authority when it detains people,ICE must do

6 so in a humane manner, with a focus on providing safe conditions and care. Conditions of

7 detention at the NWIPC are governed by the Performance-Based National Detention Standards
8
2011 ("PBNDS"). The PBNDS reflects ICE's ongoing effgrt to tailor the conditions of
9 10 immigration detention to its unique purpose while maintaining a safe and secure detention
11 environment for detainees and staff.

L2

11. Upon admission, the PBNDS requires that medical and mental health screening

l3 shall be conducted "to identifli requirements for medical care, special needs and housing, and to t4
protect the health and safety of others in the facility." See PBNDS 2.1(l), (V). As a response ro
15

l6 COVID 19, IHSC has implemented certain safety protocols, including those conducted at the

t7 initial medical screening, which are set forth in a separate declaration by IHSC. In addition,

l8 effective March 26,2A2A,IHSC is implementing temperature and prescreening checks of all new

t9

detainees arriving at the NWIPC prior to entrance to the facility. 20

2'

12. The PBNDS requires that all incoming detainees'personal property and valuables

22 must be inventoried and stored. ,See PBNDS 2.1(D, (V). Further, all incoming detainees must be

23 afforded the opportunity to shower and provided with clean clothing, bedding, towels and

24 personal hygiene items. Id.

25

26

13. GEO provides each detainee arriving at the NWIPC an instructional flyer

27 outlining proper hand washing hygiene and the importance of covering coughs along with the

28
2 Aliens who come into custody of the local U.S. Border Patrol and U.S. Customs and Border Protection, either at the border or in the interior, are also transferred to the NWIpC.

DREW H. BOSTOCK DECLARATION Case No- C20-0409-JLR-MAT - 4

TINITED STATES ATTORNEY
700 SrE\r/ARr STREE], SurfE 5220
Srarrrr, Wasrm{c'roN 98 I 0 I
(206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 5 of 19

1 required Detainee Handbook upon admission. In response to COVID 19, additional posters in

2 multiple languages concerning hand washing hygiene and covering coughs have also been placed

J-

in each housing unit at the NWIPC.

4

5

14. As of March20,202A, all incoming detainees to the NWIPC who do not meet the

6 curent IHSC protocol requirements for isolation monitoring due to possible COVID 19

7 symptoms, exposrne or testing, are placed in two separate housing units for 14 days of
8
monitoring for signs or symptoms of COVID 19. One unit is designated for male detainees and
9
another for female detainees. These housing units contain separate cells.3 Each cell may house
10
ll up to four detainees, however not every cell is filled to maximum occupancy. Detainees who are

l2 admitted to the facility on the same date and who are detennined to be the same risk

13 classification level may be housed in the same cell. Detainees admitted on separate dates and t4
those at different risk classification levels are not housed together. Detainees in the 14-day
l5
16 observation period are not allowed to commingle with other detainees in common areas during
17 that l4-day period. If 14 days pass without any detainees in a cell displaying signs or symptoms

18 of COWD 19, the detainees are released to other housing units in the facility. A separate remote
19 medical unit has been established to monitor detainees undergoing 14-day observation in these
20
2l two housing units.

22

Safety Measures at the NWIPC: Detainee Education. Hvqiene & Sanitation

23

15. Section 1.2 of the PBNDS sets forth the detention standard for protecting

24 detainees, staff, volunteers and contractors from injury and illness by maintaining high facility
25 standards of cleanliness and sanitation, safe work practices, etc. Pursuant to PBNDS 1.2(VX1),
26

27

28

3 The NWIPC consists of 2l separate housiag units: 1 I open bay units, 6 celled units, aad 4 mixed celUopen bay
units. Open bay units generally consist of bays created by lloor to ceiling side walls with no front wall or door so

that front of each bay is open to the pod. Each bay usually contains two bunkbeds and can therefore house four

detainees-

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 5

{,NITED STATES ATTORNEY
700 STE\4iART SrneE'r, Surre 5220
SEATTLE, WAsrillcroN 98 I 0 I
(206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 6 of 19

I the environmental conditions at the NWIPC must be maintained at a level that meets recognized

2 standards by the Centers for Disease Control ("CDC"), the American Correctional Association,
Ja
the Occupational Health and Safety Administration, the Environmental Protection Agency and 4
5 the Food and Drug Administration. Under the PBNDS, GEO is responsible for "developing and
6 implementing policies, procedures and guidelines that are intended to identifr and eliminate or

7 control as necessary. . . .modes of transmission of agents or vectors of communicable disease."
8
^See PBNDS I.2(V). As a minimum of general housekeeping, the PBNDS requires that all
9 horizontal surfaces in the facility be damp dusted daily with an approved germicidal solution;
10
ll that all furniture and fixtures be cleaned daily, and that allfloors be mopped daily with a clean

lz mop head. See id.

l3

16. In response to COVID 19, GEO has informed ICE that it has enhanced cleaning

l4

in all housing units, food preparation and service areas, intake rooms and other work centers with t5

1,6 increased emphasis on cleaning contact areas with disinfectant cleaners approved as effective

t7 against COVID 19.

l8

17. Soap and cleaning supplies are made available by GEO to detainees in all housing

t9 units and work areas at the NWIPC. GEO has informed ICE that it has increased the amount of
20

2l soap, disinfectant cleaner and food service sanitizer in every housing unit in response to COVID

22 19, and that inventory levels of these supplies are monitored on each shift to ensure ready

23 availability. On March 25,2A20, GEO reported to ICE that it has not received any complaints

24 from detainees at the NWIPC regarding lack of soap.

25

26

18. GEO has informed ICE that, as a response to COVID 19, its executive staff have

27 been conducting weekly town hall meetings with detainees in every housing unit at the NWIPC

28 specifically to educate detainees on hand washing and covering coughs. At these meetings, GEO

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 6

UMTED STATES ATTORNEY 700 SrrwARr STREET, Su[E 5220
Sperrrs, Wasru,lcroN 98 I 0 1
{206) 5s3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 7 of 19

I is also instructing detainees to clean tables and horizontal surfaces with San-T-10 Plus Food
2 Service Sanitizer before each meal and a neutral disinfectant after each meal. Detainees are
J
further instructed to clean countertops, microwave handles, door handles, exercise equipment, 4 5 electronic tablets used for detainee entertainment and communication, telephones and any high
6 risk contact areas with disinfectant cleaner. A demonstration is provided as to how to clean

7 elechonic tablets and telephones and detainees are instructed to clean them after each use.
8
Safetv Measures at the NWIPC: Visitors & Staff
9
19. On March 13,2A2A,1CE temporarily suspended social visitation at detention
10

l1 facilities, including the NWIPC, to prevent the spread of COVID 19. Detainees at the NWIPC

l2 continue to have communication access through telephones and electronic tablets provided in

13 each housing unit. The electronic tablets allow for video communication.

t4
20. All tours of the NWIPC have been cancelled.

15

l6

21. GEO is screening all contractors, vendors, attorneys and court visitors through a

l7 questionnaire that includes, inter alia, questions regarding whether the individual is currently

l8 experiencing any possible symptoms of COVID 19 and recent travel history. Individuals who I9
positively report possible symptoms, possible exposure to COVID 19, or recent travel to areas of
2A
2t concem are prohibited from entering the NWIPC.

22

22. Attorney visits at NWIPC are limited to noncontact visits unless a contact visit is

23 absolutely necessary and has been approved by the ICE Officer in Charge or the Assistant
24
Officer in Charge. If an attorney's request for a contact visit is approved, attorneys must wear
25 26 personal protective equipment ("PPE"), including masks. Attorneys who are unable to furnish
27 their own masks are provided surgical masks by GEO.a In addition, ICE has implemented a

28
a Due to the general shortage of N95 masks, GEO is unable to provide private attorneys with N95 masks for contact visits.

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 7

UNITED STATES ATTORNEY 700 SrswARt SrREEr, SurtE 5220
SEAI-TLE, WASril.{GToN 98 1 0 1 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 8 of 19

I daily duty officer to facilitate unmonitored afforney-client phone calls from each housing unit so

2 that detainees do not have to move throughout the facility.

Ja

23. ICE and GEO employees have received multiple instructions and reminders

4

5 concerning the importance of hand washing and coveriag coughs to prevent the spread of

6 COVID 19 and extra hand sanitizer has been provided to employees throughout the NWIPC.

7 ICE has provided its own employees with disinfectant wipes so they may conduct extra daily

8
cleaning of high contact areas within their work spaces (door handles, phones, computers, etc.) in
9

l0 addition to the daily cleaning provided by GEO maintenance staff.

11

24. ICE and GEO are currently collaborating on a process to implement temperature

l2 checks of all employees and staff for GEO, ICE, and the Executive Office for Immigration

13 Review ("EOIR") at the NWIPC. ICE plans to begin implementing these measures on March
t4

27,2020.
l5

t6

25. ICE and GEO employees have been instructed to stay home in the event that they

t7 are sick, experiencing any possible symptoms of COVID 19, or have been in close contact with

18 someone diagnosed with COVID 19. Staff have also been asked about recent travel to areas with
l9 COYID 19 outbreaks, such as New York. Both GEO and ICE employees who are ill or believe
20
2t they may have been exposed to COVID 19 are instructed to follow the advice of their personal

22 care providers. While GEO is not required to report to ICE if any of its employees at the

23 NWIPC have been tested or diagnosed with COVID 19, both parties have a solid working

24
relationship and GEO is voluntarily providing that information to ICE. To date, ao ICE or GEO
25

26 employees or staff at the NWIPC have reported testing positive for covlD 19.

27

26. ICE has instituted a telework program for its employees at the NWIPC to

28 minimize the number of employees present at the facility.

DREW H. BOSTOCK DECLARATION
I Case No. C20-0409-JLR-MAT -

UNITED STATES ATTORNEY 700 Srewanr SrREEr, SurrE 5220
SrarrrE, WasrulcToN 98 I 0 I
{206) 5s3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 9 of 19

1

a. Currently, ERO Tacoma has implemented a 5AYo telework program - meaning

2

that only half of ERO employees are present at the NWIPC at any one time.

3
Teleworking ERO employees roiate on a two-week basis. This does not include 4

5

some limited support staff whose duties are not conducive to telework and are

6

necessary for the functioning of the office.

7

b. The Tacoma ICE Office of the Principal Legal Advisor ("OPLA"), which

8
provides legal services and represents the Department before EOIR, has instituted

9

l0

a maximum telework progrilm. All OPLA employees have been asked to

11

telework unless it is absolutely necessary for them to be in the office. This does

t2

not include some limited support staff whose duties are not conducive to telework

13
and are necessary for the functioning of the office, i.e. those required to open and
t4
scan incoming legal mail.
l5

16

Safetv Measures: Removal Proceedinqs at the Tacoma knmigration Court

t7

27. Removal proceedings before the Tacoma Immigration Court, which is collocated

l8 within the NWIPC, currently continue to proceed at this time.

t9

28. Multiple measures have been implemented by EOIR and ICE in response to

20

2l COVID 19. On March 18,2020, EOIR issued a memo regarding Immigration Court Practices

22 During the Declared National Emergency Concernirug the COVID-19 Outbreak. See

23 https:ll"vwwjustice.govieoir/file/1259226ldownload (accessed March 25, 2020). This

24 memorandum sets out specific safety measures implemented by EOIR in response to COVID 19,
25
including but not limited to: 26

27

a. Requiring all persons having business before an immigration court notifii an

28

employee at the security screening checkpoint of certain types of recent travel,

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 9

IINITED STATES ATTORNEY 7OO STEWART SIREET, SUIE 5220
SEATTLE, WASIillGroN 98 10 1 {206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 10 of 19

I

whether they have asked to self-quarantine; whether they, or someone with whom

2

they have contact with has had contact with, has been diagnosed with CovID 19

J
in the last 14 days. 4

5

Reminding immigration judges that the presence of represented aliens at hearings

6

may be waived; that continuances may be granted upon a showing of good cause.

7

c. Encouraging parties to resolve cases through written pleadings, stipulations and

8

joint motions.

9

l0

d. Directing that hearings amenable to being conducted by telephone or

11

videoteleconference ("vrc"), especially for cases involving detained aliens,

l2

should be conducted through those mediums to the maximum extent possible.

l3
rd.
t4
29. As of this week, EOIR is conducting all hearings at the Tacoma Immigration
15

t6 Court via VTC. In such hearings, the Immigration Judge sits separately in one courtroom and

t7 the detainee-respondent appears via VTC from a separate courtroom within the facility. ICE

18 attorneys also appear separately via VTC from either their office or from home. Private bar

t9

attorneys have been provided the opportunity to appear telephonically. 20

2l

30. Similarly, ICE has established a method by which private bar attorneys may

22 contact ICE attorneys to request reconsideration or stipulations to bond in particular cases and on

23 a case by case basis. As.a result, ICE has agreed in certain cases to stipulate to bond thereby

24 avoiding the necessity of holding a bond hearing.
25

26

Alternative Measures: Release from Detention

27

31. Early last week, ERO Tacoma began conducting a discretionary review of certain

28 detainees' cases identifred by IHSC, based on their medical records, as detainees who meet the

DREV/ H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 10

UMTED STATES ATTORNEY 7OO SrrlvARr STREET, SUIE 5220
SEATTLE, WAsril.rcroN 98 I 0 I
t2o6\ 553-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 11 of 19

I current CDC criteria as at-risk due to COVID-l9. Such a review process is labor intensive as it

2 requires not only identification by IHSC that a detainee falls within an at-risk category, but also a
Ja
review of each detainee's immigration and criminal history to determine whether they are subject 4
5 to various mandatory custody provisions. If an identified detainee is not subject to mandatory

6 custody, a case-by-case analysis is then conducted to determine whether each detainee is a

7 danger and/or flight risk such that release is not appropriate.

8

32. As a result of this ongoing review process, ICE has already released six detainees

9

from custody, including two of the named Plaintiffs, as discussed further below. 10

ll

Named Petitioner-Plaintiffs

t2

33. To provide context for the reasons why each of the dne named petitioners is in

l3
custody or has recently been released since the filing of this pending motion, ICE has conducted

t4

a preliminary review of their case histories and each follows.
t5

t6

34. Alfredo Espinoza-Espatza is a 4l-year old native and citizen of Mexico with four

t7 prior voluntary returns from the Udted States. He was taken into custody by U.S. Border Patrol

18 Agents in Spokane, WA on October 30,2AL9 after receiving an anonymous tip concerning
l9
undocumented workers employed at a local restaurant. It appears Espinoza-Esparzahas an
2A
2t active criminal warrant out of Nebraska for a minor 2009 offense but extradition was declined.

22 At the time this instant motion was filed, Petitioner Espinoza-Esparzawas detained under INA $
23 236{a). He had withdrawn his bond request at a bond hearing before an Immigration Judge 24
("IJ") on November 13, 2019 without prejudice for renewal and had not requested another bond
25
26 hearing. He currently has an appeal pending at the Board of Immigration Appeals ("BIA"). As
27 long as that appeal remains pending, he remained eligible to request another bond hearing,

28 however, no bond request was made. After having been identified by IHSC as having a medical

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 1l

LINITED STATES ATTORNEY 700 SrEwARr SIRrsr, SurrE 5220
SEATTLE, WAsril.{croN 98 I 0 I (206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 12 of 19

I condition that places him at higher risk for severe illness due to COVID-19 according to CDC

2 guidelines, ICE reviewed his case and determined that he could be released. ICE released
Ja
Petitioner Espinoza-Esparza on his own recognizance ("OREC") and enrolled him in ICE,s 4
5 Alternatives to Detention ("ATD") program on March 25,2020.

6

35' Norma LopezNunez is a 65-year old native and citizen of Mexico with multiple

7 prior removals and approximately five convictions for illegal reentry (2006,2007,200g, July
8
2015 and October 2015), at least one of which resulted in a 35-month sentence. In addition, she 9 10 has a 1986 felony burglary conviction and a 1986 felony aggravated felony forgery conviction,

1l which appears to have involved forging the name of a deceased recipient of Social Security
l2 benefits for almost l0 years. Petitioner LopezNunez was taken into ICE custody in California
13
on May 27 , 2A16 and subsequently transferred to the NWIPC on April 28,2017 . White in
t4
15 custody, she has been designated as a Franco-Gonzalez class member5 due to mental health
16 concerns but deemed competent by the IJ. She was initially denied bond at a bond hearing

t7 conducted pursuant to Rodriguez v. Robbins,7l5 F.3d ll27 (gthCir. 2013) {"Rodriguezbond,
18 hearing") on March 17,2017 after an IJ found her to be an extreme flight risk. She was denied
l9
20 bond again on Septemb er 6,2a17 at a Franco bond hearing. Her bond appeal was subsequently
2t dismissed by the BIA. She was denied bond a third time at a subsequ ent Rodriguez bondhearing

22 on March 14,20L8. Her case was set back to the master calendar docket because her attorney
23 indicated she wished to withdraw her application for relief but she subsequently changed her 24
mind- Her attorney then withdrew, causing further delay. At the request of the Northwest 25 26 Immigrant Rights Project ("NWIIU"';, a secondjudicial competency hearing was conducted on

27 December 3,2018, after which Petitioner LopezNunez was deemed not competent. She was

28

s Franco Gonzalez v. Holder,2014wL 5475097, *3 (c.D. cal.2014) {,,Franco,).

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - t2

TINITED STATES ATTORNEY
7OO STEWART SIREET, SUTE 5220 SperrrE, Wasrm'rcroN 98 1 0 1 (206) s53-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 13 of 19

I then given a court appointed attorney, otherwise known as a Qualified Representative ("QR").
2 The QR withdrew a bond request at the last bond hearing before the IJ on December I 8, 201 8
3
and it does not appear that the QR has ever requested another bond hearing. After two individual
4 5 hearings, the IJ denied all applications for relief and ordered Lopez Nunez removed on July 31,
6 2019. The BIA dismissed her appeal on February 21,2A20. She filed a petition for review

7 ("PFR") and a mofion for stay of removal with the United States Court of Appeals for the Ninth

8
Circuit on March 16,2020 and an automatic temporary stay is currently in effect.

9

l0

36. Marjoris Ramirez-Ochoa is a 43-year old native and citizen of Cuba. She was

11 originally paroled into the United States in 1984 and applied for adjustrnent of status under the

t2 Cuban Adjustment Act. While her application was pending she returned to Cuba and was
l3
paroled back into the United States on July 3,2002. Her application for adjustment was denied t4
on February 12,2003, thereby terminated her parole. According to court records, Petitioner
15
16 Ramirez-Ochoa appears to have a2002 conviction for shoplifting, 2005 and 2006 convictions for

17 petittheft anda2016 convictionfortheftinthethirddegree. OnApril 3,20l9,shewas
l8 convicted of felony robbery in the second degree, an offense that involved the use of a firearm. t9
She was sentenced to six months and released directly to ICE custody on April 4,2019. She was
2A
2t placed in removal proceedings and charge as an arriving alien inadmissible under INA $

22 212(a){7)(AXiXI). At a bond hearing on October 8,20L9, the IJ found no jurisdiction for bond

23 as Petitioner Ramirez-Ochoa is detained under INA $ 235(b). On March 5,2020,the IJ issued a 24
written decision denying all applications for relief and ordered her removed to Cuba. Petitioner 25 26 Ramirez-Ochoa has reserved appeal but, as of today, has not yet filed a Notice of Appeal with
27 the BIA. She currently has an outstanding criminal warrant out of Snohomish County for

28 another second degree robbery.

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 13

TINITED STATES ATTORNEY 700 Srervaar SrREEr, SurrE 5220
Srerrrr, WasrmqcroN 98 1 0 1
{206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 14 of 19

1

37. Maria Golzalez-Mendoza is a 48-year old native and citizen of Mexico whose

2 original date of entry without inspection is unknown. She was apprehended by Border Patrol in
3
AZ on July 28,2019 while engaging in alien smuggling. According to DHS records, Petitioner 4
5 Gonzalez-Metdoza was observed by Border Patrol Agents picking up illegal aliens at an

6 unpopulated area near the interstate in an area known for drug and human smuggling. The alien

7 passengers Plaintiff Gonzalez-Mendoza picked up were wearing camouflage clothes and booties
8
on their feet, tactics commonly used by illegal entrants to conceal their movements. She was
9
placed in removal proceedings, charged with inadmissibility pursuant to INA g 212(a)(6)(AXr)
10
ll (entry without inspection), and transferred to the NWIPC on August 23,2019. She is currently

t2 detained under INA $ 236(a). Howevet, she was denied bond on November 18,2019 after an

13 found her to be a flight risk. Her bond appeal is currently pending with the BIA. At this time, t4
her removal proceedings remain pending and she is scheduled for an individual hearing before an
15
t6 IJ on March 31,2020.

t7

38. Joe Hlupheka Bayana is currently believed to be a 54-year old native and citizen

18 of Zimbabwe whose real name is Mketwa Phiri. He was admitted to the United States on May t9
23,1993 on a nonimmigrant visa in the false name of Joe Bayana on a fraudulently obtained 20
2l South African passport. After entry, he obtained several visa extensions in that alias. After an
22 arrest, he was placed in removal proceedings on April 19,2002 in the name Joe Bayana and

23 charged as being a South African national removable pursuant to INA g 237(a)(1)(B) (visa
24 overstay). On May L6,2002, Petitioner Bayana presented a copy of the South African passport
25
- 26 to the IJ in support of his request for bond and was granted bond. On January 7 , 2003 , Bayana
27 who never admitted to the IJ his true identity - admitted and conceded the allegations and

28 charges contained in the Notice to Appear and accepted an order of voluntary departure to South

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - l4

I'NITED STATES ATTORNEY 700 Smwalr ST?GEr, SurrE 5220
SEATTLE, WASrD,rcroN 98 I 0 I (206) ss3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 15 of 19

I Africa. He subsequently failed to depart voluntarily and the order automatically converted to an
2 order of removal as a matter of law. He then failed to report in to DHS for removal twice. He
3
was taken into ICE custody on July 1,9,20A4 following release from jail on trespassing charges.
4 5 However, he had to be released on an Order of Supervision ("OSUP") on November 19,20A4
6 after ICE was unable to obtain a South African travel document to effect his removal. Since that
7 time, Bayana has been arrested approximately 22 times for charges ranging from trespassing,
8
larceny, drugs, assault and harassing communications. He was taken into ICE custody several 9
times following these arrests, but each time had to be released because ICE was unable to obtain
10
11 a South African travel document. From August30,2012 until April 5, 2018, he failed to report
t2 in to ICE as required by the terms of his OSUP a:rd he remained an immigration fugitive during l3 those years. In April 2018, Petitioner Bayana walked into the ICE Seattle Field Offrce in
l4
Tukwila, WA accompanied by an attorney from NWIRP and asked for a new OSIIP document
15
l6 so that he could apply for work authorization. At that time, he still did not reveal his true
t7 identity, and ICE required him to fill out ataveldocument application to South Africa. On
18 October 17 ,20I8,ICE revoked his release and took him into custody anticipating that it would
l9
be receiving a South African ffavel document to effect his removal. Once in custody, Petitioner 20 21 Bayana filed a habeas petition on January 25,2079. While the habeas petition was pending, ICE
22 was notified by the South African government that the real Joe Hlupheka Bayana was deceased.
23 ICE was provided with photographs, identity documents and fingerprint cards for the real Joe 24
Hlupheka Bayana. Despite multiple interviews under oath, however, Petitioner Bayana 25 z6 continued to insist that he was the South African named Joe Bayana until ICE confronted him 27 with the results of a forensic fingerprint comparison. At that time, he finally revealed that he is
28 actually Mketwa Phiri, a citizen of Zimbabwe. On May 15, 2019, his habeas was dismissed with

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 15

TINITED STATES ATTORNEY 700 SrrwaRr STREET, SurlE 5220
SEATTLE, WAsril.rcroN 98 I 0 I (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 16 of 19

I prejudice. From February ZA1^9 to December 2019, Petitioner was documented as a failure to

2 comply because he refused to sign the travel document issued by Zimbabwe. He filed a motion
3
to reopen ("MTR") his removal proceedings and that motion was denied by the IJ on June 10, 4 5 201 9. The BIA denied his appeal on Novemb er 22, 2019. He currently has a PFR pending and
6 temporary stay. A motion to dismiss the PFR and an opposition to the stay was filed by the

7 Government on February 12,2020. ICE is currently in the process of conducting a one year post

8
order custody review ("POCR"), as required by the regulations, to determine whether Plaintiff
9

l0 Bayana should be released.

11

39. Leonidas Plutin Hernandez is a 59-year old native and citizen of Cuba who

t2 applied for admission to the United States at the Del Norte Port of Entry on August 18, 2019
13 without valid entry documents. At that time, he claimed fear of return and was issued a Notice to
t4 l5 Appear ('NTA") under the Migrant Protocol Program. However, he was not returned to Mexico 16 and he was subsequently removed from the MPP program. As a result, his NTA was cancelled
l7 and he was processed as an expedited removal under fNA $ 235(b) awaiting a credible fear l8 interview. After several transfers to ICE facilities on the southern border, he was transferred to t9
the NWIPC on March 1,2020. On March L8,202O,ICE served a new NTA placing him in 20
2l removal proceedings and charging him as an arriving alien inadmissible pursuant to INA $
22 2tz(a)(7)(A)(i). After having been identified by IHSC as having a medical condition that places

23 him at higher risk for severe illness due to COVID-I9 according to CDC guidelines, ICE

24 reviewed his case and determined that he could be released. On March 25,2020,ICE released
25
26 Petitioner Plutin Hernandez on humanitarian parole pursuant to 8 C.F.R. $ 212.5(b).

27

44. Kelvin Melgar-Alas is a 4O-year old native and citizen of El Salvador who is

28 believed to have originally entered the United States without inspection in 1990. He adjusted to

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 16

UNITED STATES ATTORNEY 700 Srewerr STREET, SrrrE 5220
SEATTLE, WASm,rcroN 98 I 0 I
(206) ss3-797A

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 17 of 19

I lawful permanent resident status in 2001. In 2008, he was convicted of distribution of

2 methamphetamine in violation of 2t U.S.C. $ 846, 8a1(a)(1),(b)(l) and sentenced to 120 months
J
in prison. ln2013, Petitioner Melgar-Alas was convicted of a RICO offense in violation of l8
4
5 U.S.C. $ 1962(d) for his membership and participation in the Mara Salvatrucha, or MS-13 gang.
6 In his plea, Petitioner Melgar-Alas agreed that he was a "shot callef'of the Hollywood clique of

7 the MS-13 from 1995 to May 2009 and that, in that role, he agreed with other members of the
8
MS-13 that the gang would engage in "numerous acts of violence and other crimes, including 9
l0 drug trafficking and extortion by threat of violence." He was sentenc edto 27 months in prison
11 and as released directly to ICE on July 18, 2018. He was placed in removal proceedings and

12 charged with removability pursuant to INA $$ 237(a)(2XBXi) (controlled substance offense) and
l3 237(a)(2)(A)(iii) (aggravated felony), to wit rNA $$ l0t(a)(a3)(B) (drug trafficking) and t4
101(a)(a3)(J) (RICO conviction). Due to his aggravated felony convictions, his eligibility for
15
t6 relief from removal is extremely limited. On February 25,2}lg,the IJ denied his motion to
tl terminate and applications for relief and ordered him removed to El Salvador. The BIA denied

18 his motion to remand and dismissed his appeal on August 7,2019. He currently has a PFR
79
pending and stay issued by the Ninth Circuit. On February 6,2020, he had a bond hearing 20
2l conducted pursuant to Aleman Gonzales v. Sessions,323 F.R.D. 616, 3:18-cv-01869-JSC (N.D.

22 Cal. July 2A,2018) ("Aleman bond") and the IJ denied bond finding him to be both a danger and

23 a flight risk. His bond appeal is currently pending at the BIA.

24

41. Jesus Gonzalez Herrerais a46-year old native and citizen of Mexico who came

25

26 into ICE custody following a conviction on July 22,2019 in Idaho for burglary. According to

2l arrest and court records, Plaintiff Gonzalez Herrera was the driver of a stolen vehicle that left the

28 roadway, hit a power pole and flipped, resulting in injuries to his partner and two minor children.

DREW H. BOSTOCK }ECLARATION Case No- C20-0409-JLR-MAT - l7

IINITED STATES ATTORNEY 700 STE',VARr STREET, Su[E 5220
Searrrr, WasrurcroN 98 I 0 I
{206) 5s3-797A

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 18 of 19

1 In return for his plea to burglary, charges for leaving the scene of an accident involving

2 deattr/injury were dismissed. He was transferred to the NWIPC on July 26,2019 and is charged
Ja
with inadmissibility pursuant to INA $ 212(a)(6)(AXr) (entry without inspection). He is
4
5 currently detained under fNA $ 236{a). At a bond hearing on February T3,2020,his attorney
6 from NWIRP withdrew his bond request before the IJ without prejudice. At an individual
1
hearing on March 24,2020, Petitioner GotualezHerrera admitted to the IJ under oath that he had
8
he had been drinking alcohol and speeding at the time of the accident that injured his pregnant 9
l0 partner and children; that he fled the scene of the accident, and that his children were
11 hospitalized as a result of the accident. At the conclusion of that hearing, the IJ determined that
t2 he did not merit a favorable exercise of discretion, denied his applications for relie{ and ordered
13 him removed. Petitioner Gonzalez Herrera has reserved appeal and is still within the 30-day
l4
appeal window. Until his removal order becomes administratively final, he remains detained
15
t6 under fNA $ 236(a) and may request a bond hearing before the Immigration Judge. fCE would

t7 not oppose a request for a bond hearing before an Immigration Judge.

18

42. Karlena Dawson is a 48-year old native and citizen of Jamaica who was initially

19
encountered in 1993 when she attempted to enter the United States from Canada using a U.S. 20

2l birth certificate under a different identity. She was placed in exclusion proceedings in 1993 and

22 ordered deported in absentia by an IJ on February 23, 1994. on July 20,2olo, she was

23 convicted of Importing Hashish Oil in violation of 2I U.S.C. gg 952(a), 960 under an alias and
24 received a 63 month sentence. She was ordered removed by an IJ on the Institutional Hearing
25 26 Program ("lHP") docket, i.e. while she was still serving her criminal sentence, on May 3A,2013.
27 Her appeal was rejected by the BIA and she was removed to Jamaica on April 24,2A14. On

28 February 8,2019, Petitioner Dawson applied for admission at the San Ysidro Port of Entry

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 18

TINITED STATES ATTORNEY 700 Srawaar STRrEr, SurrE 5220
SEATTLE, WAsril{croN 98 I 0 1 (206) 5s3-7970

Case 2:20-cv-00409-JLR-MAT Document 66 Filed 03/30/20 Page 19 of 19

I falsely claiming to a be a U.S. citizen by birth and presented an Ohio identity card in a false

2 identity. She was referred for secondary inspection where she subsequently admitted her true
aJ
identity and claimed fear of return to Jamaica. She was placed in removal proceedings following 4
5 a credible fear interview pursuant to an NTA issued on March 18, 2019 charging her as an
6 arriving alien inadmissible pursuant to INA $ 212(a)(l)(Axr). Due to her aggravated felony

7 drug trafficking conviction, her eligibility for relief is extremely limited. In April 2019,rC8
8
denied her request for parole. On June 10,2019, the IJ denied her applications for relief and
9
10 ordered her removed on Jamaica. The BIA dismissed her appeal on December 2, 2019. She
11 currently has a PFR pending and a temporary stay of removal issued by the Ninth Circuit. On
t2 January 28,2020, Petitioner Dawson filed an application for a u-visa and the application l3
currently remains pending before USCIS. Petitioner Dawson has filed a motion with the Ninth
14
l5 Circuit asking to hold her PFR in abeyance while the application is adjudicated. To the best of t6 the Department's knowledge and belief, that motion has not been ruled on.

t7

Pursuant to 28 U.S.C. # 1746,I declare under penalty of pefury that the foregoing is

l8 true and correct to the best of my knowledge and belief.

19

20

Executed thts2Tth day of March,2020,

2t

DREW H

DisitallysienedbyDREWH

BOSTOCK l;[:2ozo'or'zztz':t'o:

22

Drew H. Bostock

23

Officer in Charge

U.S. Department of Homeland Security

24

U.S. Immigration and Customs Enforcement

25

Tacoma, WA

26

27

28

DREW H. BOSTOCK DECLARATION Case No. C20-0409-JLR-MAT - 19

I]NITED STATES ATTORNEY 700 STE\4/ARr STPGET, Su[E 5220
SEATTLE, WASHNGToN 98 I 0 1 (206) s53-797A

 Case 2:20-cv-00409-JLR-MAT Document 65 Filed 03/30/20 Page 1 of 3

LINITED STATES DISTRICT COURT VTESTERN DISTRICT OF WASHINGTON
AT SEATTLE

KARLENA DAWSON, et al., Petiti oners -P lainti ffs, v. NATHALIE ASHER, et al.,
Re spondents-D efendants.

Case No. C20-0409-JLR-MAT

SECOND DECLARATION OF DR. ADA RIVERA
I, Dr. Ada Rivera make the following statements under oath and subject to the penalty of perjury:
t. I am currently the Deputy Assistant Director for Clinical Services/Medical Director of the ICE Health Service Corps (IHSC) of Enforcement and
Removal Operations, U.S. Immigration and Customs Enforcement (ICE). I have held this position since Iily 2017.
2. In my current position, I oversee and monitor all clinical services at IHSCstaffed facilities that house ICE detainees, including the Northwest ICE Processing Center (NIPC) in Tacoma, Washington.
Ja. IHSC provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at2A IHSC-staffed facilities throughout the nation.
4. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
5. Since the onset of reports of Coroaavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating

Case 2:20-cv-00409-JLR-MAT Document 65 Filed 03/30/20 Page 2 of 3
infection prevention and control protocols, and issuing guidance to IHSC stafffor the screening and management of potential exposure among
detainees.
6. Moreover, ICE has maintained a pandemic workforce protection plan since February 2014, which was last updated in May 2017. This plan provides specific guidance for biological threats such as COVID-19. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-I9.
7. Also, IHSC has been in contact with relevant offices within the Department of Homeland Security, and in January 2A2A, the DHS Workforce Safety and Health Division provided DHS components additional guidance to address assumed risks and interim workplace controls, including the use of N95 masks, available respirators, and additional personal protective equipment.
8. I supplement the information from my first declaration in this matter dated March 18,2020 to include the following:COVlD-Ig testing is conducted
pursuant to CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. The clinician
will screen for signs and symptoms compatible with COVID-19, such as fever, cough, difficulty breathing (and other respiratory illness symptoms). He or she will also consider epidemiologic factors such as the occurrence of
local community transmission of COVID-19 infections in a jurisdiction and is encouraged to test for other causes of respiratory illness. His or her
analysis of these factors will determine if the individual meets the criteria for
testing. The local health department is always consulted prior to obtaining samples. The samples are sent to IHSC's contract commercial laboratory, the local health department or the CDC depending on availability of testing.
9. Al1new detainees are screened the same way as it relates to COVID-19 signs and symptoms during intake medical screenings; they are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks. Those that require cohorting are monitored daily. High risk detainees are identified and notification made to ICE for awareaess. High risk detainees are monitored through chronic care clinics and all detainees have daily access to sick call and are ffeated according to their needs.
Page 2 of3

Case 2:20-cv-00409-JLR-MAT Document 65 Filed 03/30/20 Page 3 of 3

l0.In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for
the duration of the most recent incubation period (14 days after most recent
exposure to an ill detainee) and are monitored daily for fever and symptoms
of respiratory i1lness. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the l4-day incubation period completes with no new cases. In the case of exposure to a person with fever or symptoms being evaluated or under investigation for COVID-19 but not confirmed, the
process is the same except that cohorting is discontinued if the index patient receives an alternate diagnosis excluding COVID-19. Detainees that are
cohorted together were all identified at the same time. The incubation period
starts on day one for 14 days. If during that period there are new arrivals that
need to be cohorted, they are placed in a different pod/area for their 14 days.
If any individual within these cohorts develops signs / symptoms, they are
isolated and the 14 days for the group they were in, starts again.IHSC has had no development of symptoms within cohorted groups since it was started in January,2A2A aad the practices are consisteat with CDC guidelines.
l l.There has not been any positive COVID-I9 testing within the IHSC staffed detained population since IHSC started screening in January. While testing has been conducted only on symptomatic (ill) individuals, IHSC monitors daily, separately or within cohorts, detainees who do not have symptoms arriving from countries with community transmission of COVID-19 and detainees with exposure to known positive COVID-19 individuals.
l2.The practices described in this and my prior declaration for the screening and prevention of COVID 19 are practices recommended by CDC guidelines.

I declare, under penalty of perjury under 28 U.S.C. S 1746, that the
foregoing is true and correct to the best of my knowledge, information and belief.

DATED: March 26,2020

DA A

I R I VE RA 3:11"1H'J,:iJi*',.1',,1';:m

Dr. Ada Rivera Deputy Assistant Director for Clinical Servicesl Medical Director, ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement

Page 3 of3

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 Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 1 of 8

1

2

3

4

UNITED STATES DISTRICT COURT FOR THE

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7

8 KARLENA DAWSON, et al.,
9
Plaintiff, 10
V. 11
12 NATHALIE ASHER, et al.,

CASE NO. C20-0409-JLR-MAT
DECLARATION OF DR. SHERI MALAKHOVA, M.D.

13

Defendants.

14

15

I, Sheri Malakhova, M.D., declare as follows:

16 1. I am an Internal Medicine Doctor and serve as the Clinical Director for ICE
17
18 Health Services Corps ("IHSC") at the Northwest ICE Processing Center ("NWIPC") in

19 Tacoma, Washington. I have been employed at this facility since September 30, 2015, and my

20 duties include providing and overseeing the medical care of detainees housed at this facility.
21
2. I am aware of the Court's April 1, 2020 Order to File Additional Evidence in this
22
case and provide the following declaration in response as a supplement to Dr. Rivera's
23
24 Declaration dated March 26, 2020. (Rivera Deel., Dkt. No. 65)

25

3. This declaration is based upon my personal and professional knowledge and

26 information obtained from various records and systems maintained by DHS in the regular course
27
of business. I provide this declaration based on the best of my knowledge, information, belief, 28
and reasonable inquiry for the above captioned case.

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 1

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206} 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 2 of 8

1

Court's Question 1

2

Are detainees at NWDC currently able to maintain at least six feet of physical distance

3

from other individuals?

4

1. Detainees within the medical clinic and Medical Housing Unit ("MHU") at the

5
NWIPC are able to maintain at least 6 feet of distance apart from each other, as explained in
6
paragraph 2.
7

8

Court's Question 2

9
What steps have Defendants taken to instruct and/or encourage detainees to maintain at

10

least six feet of physical distance from other individuals, particularly in light of guidance

from Department of Homeland Security ("DHS") medical subject matter experts who

11

explain that "social distancing is essential to slow the spread of the coronavirus"?

12

2. IHSC has placed visible guides in the medical clinic and MHU at the NWIPC to

13
educate and assist detainees to stay at least six feet apart everywhere within the clinic. These
14

15 include posted signs as well as color footprints placed on the floor to assist detainees both sitting

16 and standing in the clinic to stay the requisite distance apart. These preventative measures are

17 also included at the pill line where medications are dispersed.
18 3. MHU rooms at the NWIPC are limited to single patient occupancy at this time to
19
20 increase social distancing between detainees.

21

Court' s Question 3

22

Under what circumstances, if any, are detainees unable to maintain a physical distance of

23

six feet or more from other individuals at NWDC? If detainees are unable to maintain a

distance of six feet or more from other individuals, are Defendants taking any measures

24

to mitigate the risk entailed by these circumstances? If so, what are those measures and

how will those measures mitigate the risk? 25

26

4. Detainees within the MHU and medical clinic at the NWIPC are able to maintain

27 six feet distance from each other. However, detainees may come within six feet of IHSC staff

28 within the medical clinic and MHU. To mitigate the risk of possible spread of COVID-19 from

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 2

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 3 of 8

1 IHSC or GEO staff within the medical unit or MHU, IHSC and GEO have implemented several

2 policies:
3 4 5

a. All IHSC employees are subject to temperature check screening upon entry to the NWIPC in order to reduce the risk of bringing COVID-19 into the facility.

6

b. In addition, all IHSC employees are required to self-monitor for COVID-19

7

symptoms at the start of every shift and report any possible symptoms to an

8
immediate supervisor.
9
c. On April 1, 2020, IHSC instituted a universal mask policy, requiring all IHSC
10

11

staff in the medical care clinic and MHU to wear surgical masks at all times in

12

order to mitigate the possible spread of COVID-19 from staff to detainees.

13
d. GEO informed IHSC on April 1, 2020 that GEO staff within the medical clinic

14
will also be required to wear surgical masks at all times to mitigate the possible
15

16

spread of COVID-19 from GEO staff to detainees.

17

e. IHSC has stocked N95 respirator masks for use by medical staff who care for

18

COVID-19 presumptive positive and COVID-19 positive individuals.

19 f. IHSC has provided training to all IHSC and GEO employees on the proper fit and
20

21

use of N95 respirator masks.

22

5. IHSC has also cancelled all outside elective medical appointments in order to

23 reduce to an absolute minimum the amount of time that detainees spend outside the facility to

24
mitigate risk of a detainee contracting COVID-19 from outside medical staff or environment.

25
Court's Question 4
26

27

How many tests for COVID-19 have Defendants conducted on (a) all individuals present at NWDC, including ICE employees, and (b) of that number, how many tests for

28

COVID-19 have Defendants conducted specifically on detainees at NWDC? Have any of

those tests returned positive identifications of COVID-19?

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 3

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 4 of 8

1

Detainees

2

6. ICE itself does not conduct testing for COVID-19 on any individuals present at

3
the NWIPC except for detainees within the care ofICE's Health Services Corps ("IHSC").
4
7. As of April 3, 2020, three detainees at the NWIPC have been tested for COVID-
5

6 19. All of those tests results were negative.

7

IHSC Employees

8

8. To date, no IHSC employees at the NWIPC have reported being tested or

9
diagnosed with COVID-19.
10
11

Court's Question 5

12

How many detainees at NWDC have been placed in isolation for the "14-day observation

period" or otherwise been quarantined or isolated due to screening results, symptoms, or

13

any other COVID-19-related reason?

14

Isolation Due to Screening Results, Symptoms or other Specific COVID-19 Reasons

15

9. To date, three detainees have been placed in medical isolation in the MHU while

16
being tested for COVID-19. See par. 7. A total of 70 detainees were placed in two cohorting
17

18 units while waiting for the COVID-19 test results of these three detainees. All the detainees

19 were released to general population when the test results returned as negative.

20

10. Four detainees at the NWIPC have been placed in medical isolation upon

21 admission to the NWIPC for observation for COVID-19 due to recent travel to or from various
22
countries (China, Korea, Japan and Iran). All four detainees have since completed 14 days of
23

24 monitoring with no COVID-19 symptoms and been released to general population.

25

14-Day Observation Monitoring

26

11. Since March 20, 2020, all incoming detainees to the NWIPC who do not meet the

27
current IHSC protocol requirements for isolation monitoring due to possible COVID-19
28

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 4

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 5 of 8

1 symptoms, exposure or testing, are placed in separate housing units for 14 days of monitoring for

2 signs or symptoms ofCOVID 19.
3
12. IHSC has established a remote medical unit to monitor the detainees in these 14-
4
5 day observation units.

6

13. IHSC has limited staff rotation from the remote medical post, i.e. the same IHSC

7 staff remain assigned to the remote unit, in order to reduce the possibility that IHSC staff will
8
spread COVID-19 into the general population.
9
14. To date, none of the detainees undergoing 14-day observation have shown
10
11 symptoms of COVID-19 and none have required testing. Detainees will not be cleared for

12 release until 14-days have passed without signs or symptoms of COVID-19.

13
Court's Question 7

14

In addition to isolating any individual who shows symptoms or tests positive for COVID-

15

19, what are Defendants' current plans, if any, in the event of a COVID-19 outbreak: at

16

NWDC---especially if it becomes widespread-to (a) provide medical care for detainees

who contract COVID-19, particularly detainees who are elderly and/or have serious

17

medical conditions and (b) manage the COVID-19 outbreak: to minimize the possibility

of spread to other individuals within NWDC and to the public at large?
18

19

15. Detailed descriptions ofIHSC's COVID-19 screening and prevention protocols,

20 including isolation and testing of detainees for COVID-19 and cohorting of asymptomatic

21 detainees who were previously housed with a detainee undergoing testing to minimize spread of
22 the virus are provided in the March 18, 2020 and March 26, 2020 declarations of IHSC Deputy
23
24 Assistant Director for Clinical Services Dr. Ada Rivera.

25

16. Detainees who are COVID-19 positive or presumptive positive will be housed

26 individually first in the NWIPC MHU. The MHU at the NWIPC contains eight rooms, including
27
four negative pressure rooms (airborne infection isolation rooms).
28

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 5

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 6 of 8

1

17. Two additional housing units at the NWIPC have been designated as medical

2 overflow units to house additional COVID-19 positive and presumptive positive detainees
3
should space become unavailable in the MHU. These housing units contain individual cells so
4
5 that detainees can be housed separately or COVID-19 positive detainees can be housed together.

6

18. IHSC has set up a remote medical units to treat detainees in these medical

7 overflow units. These remote medical units will be staffed by nurses.
8
19. In the event that a detainee at the NWIPC is diagnosed with COVID-19, IHSC
9
will perform a medical assessment to determine the detainee's degree of illness. IHSC will
10
11 provide medical care to detainees who are diagnosed with COVID-19 to the point that it

12 determines a detainee requires hospital care. If IHSC determines that a detainee should be

13
transported to the hospital, the detainee will be transported to a local hospital. The NWIPC is
14
located within minutes of both Tacoma General Hospital and St. Joseph Medical Center in 15
16 Tacoma.

17

20. Because all types of contact visitation are currently limited at the NWIPC,

18 detainees are not exposed to the public at large unless they are taken to the hospital. Once at the
19 hospital, medical decisions for each detainee are made by hospital medical staff. All outside
20
21 medical providers are required to communicate with IHSC, including providing medical records

22 and lab reports so that IHSC is aware of each detainee's ongoing physical condition and

23 treatment.
24
21. IHSC has provided ICE Enforcement and Removal Operations ("ERO") with a 25
list of NWIPC detainees whose medical records indicate are at higher risk of COVID-19 under
26
27 CDC guidelines. It is IHSC's understanding that ERO is currently conducting an ongoing

28 review of those cases to determine which, if any, may be suitable for release.

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 6

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 7 of 8

1

22. In the event that identified detainees are not released from custody and test

2 positive for COVID-19, IHSC intends to prioritize these detainees for placement within the

3
MHU where medical providers will be available.
4

5

Court's Question 9

6

Do Defendants currently possess the resources and ability to fully execute the plans

referenced above, including necessary medical personnel, facilities, and equipment,

7

including personal protective equipment?

8
23. It is my professional medical opinion that IHSC has the necessary resources and
9
ability to execute the COVID-19 response plans outlined above. 10

11

24. The nature of COVID-19 is such that the majority of positive cases involve either

12 no symptoms or minor symptoms. In addition, the nature of an outbreak is such that some

13
patients will be recovering or have recovered at the time that others fall ill. 14
25. The NWIPC is currently operating at a very low detainee occupancy rate, which 15
16 significantly increases staff to detainee ratios and the availability of resources to medically house

17 and treat detainees.

18

26. IHSC has a full inventory of personal protective equipment ("PPE"), including

19 N95 respirator masks for use with suspected positive and positive COVID-19 detainees.
20

21

27. The medical clinic at the NWIPC is currently staffed with more than 50

22 employees, including physicians (internal medicine specialists), nurses, radiology technicians,

23 record technicians, pharmacists and pharmacy technicians, psychiatrists and behavioral health
24
specialists, dentists and dental technicians. The medical clinic contains its own x-ray and a full25
time x-ray technician. Therefore, IHSC is capable of conducting its own x-ray examinations for 26
27 COVID-19-related pneumonia. The medical clinic also has its own pharmacy, two pharmacists

28 as well as pharmacy technicians and is therefore capable of dispensing needed medications.

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 7

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 75 Filed 04/03/20 Page 8 of 8

1

28. IHSC employees at the NWIPC include members of the United States Public

2 Health Service ("PHS"). In the event that extra staffing was needed, IHSC expects that PHS
3
staff from other locales would be sent to the NWIPC on temporary duty. In addition, IHSC also
4
5 has contracts with nursing services that could provide additional staffing.

6
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is
7
true and correct to the best of my knowledge and belief.
8

9
Executed this 3rd day of April, 2020,
10

11

12

Sheri W. Malakhova, M.D.

Board Certified Internal Medicine

13

Clinical Director

14

Northwest ICE Processing Center

Tacoma, Washington

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DR. SHERI MALAKHOVA DECLARATION Case No. C20-0409-JLR-MAT - 8

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

 Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 1 of 15

1

2

3
UNITED STATES DISTRICT COURT FOR THE

4

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7
KARLENA DAWSON, et al.,
8

CASE NO. C20-0409-JLR-MAT

9

Plaintiff,

SUPPLEMENTAL DECLARATION

10

v.

OF DREW H. BOSTOCK IN RESPONSE TO THE COURT’S

11 NATHALIE ASHER, et al.,
12
Defendants.

ORDER TO FILE ADDITIONAL EVIDENCE

13

I, Drew H. Bostock, hereby make the following supplemental declaration with respect to
14
the above-captioned matter in response to the Court’s Order to File Additional Evidence, Dkt.
15
No. 73:
16
1. I am an Officer in Charge (“OIC”) with the Department of Homeland Security

17

(“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal
18

19 Operations (“ERO”) in the Seattle Field Office (“ERO Seattle”). I have held this position since

20 December 2019. Prior to this, I was the Assistant Field Office Director from December 2017 to

21 December 2019. I am currently assigned to the Northwest ICE Processing Center (“NWIPC”) in

22
Tacoma, Washington. I have worked in various other positions within ICE since February 2007.
23

24

2. Among my responsibilities as the OIC, I manage the detained docket for the

25 aliens who are detained at the NWIPC.

26

3. This supplemental declaration is based upon my personal and professional

27
knowledge and information obtained from various records and systems maintained by DHS and
28

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 1

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 2 of 15

1 The GEO Group, Inc. in the regular course of business. I provide this declaration based on the

2 best of my knowledge, information, belief, and reasonable inquiry for the above captioned case.

3
Court’s Question 1
4

5

Are detainees at NWDC currently able to maintain at least six feet of physical distance from other individuals?

6
4. ICE defers to GEO to answer this question as the party responsible for providing
7

8 the facility, management, personnel and services for the detainees in custody at the NWIPC

9 insofar as it relates to work, housing and recreation areas accessible to detainees.

10

5. ICE refers the Court to the declaration of Dr. Malakhova, who is Clinical Director

11
for ICE Health Services Corps (“IHSC”) at the NWIPC for specific steps taken to encourage
12

13 detainees to maintain at least six feet of distance within the clinic and Medical Housing Unit

14 (“MHU”) at the NWIPC, which is run by IHSC.

15

Court’s Question 2

16

What steps have Defendants taken to instruct and/or encourage detainees to maintain at

17

least six feet of physical distance from other individuals, particularly in light of guidance

from Department of Homeland Security (“DHS”) medical subject matter experts who

18

explain that “social distancing is essential to slow the spread of the coronavirus”?

19

6. ICE defers to GEO to answer this question as the party responsible for providing

20
the facility, management, personnel and services for the detainees in custody at the NWIPC
21
insofar as it relates to work, housing and recreation areas accessible to detainees.
22

23

7. ICE refers the Court to the declaration of Dr. Malakhova, Clinical Director for

24 IHSC at the NWIPC, for specific steps taken to assist and encourage detainees to maintain at

25 least six feet of distance within the clinic and Medical Housing Unit (“MHU”) at the NWIPC,

26
which is run by IHSC.
27

28

Court’s Question 3

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 2

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 3 of 15

1

Under what circumstances, if any, are detainees unable to maintain a physical distance of

six feet or more from other individuals at NWDC? If detainees are unable to maintain a

2

distance of six feet or more from other individuals, are Defendants taking any measures

3

to mitigate the risk entailed by these circumstances? If so, what are those measures and

how will those measures mitigate the risk?

4

5

8. ICE defers to GEO to answer this question as the party responsible for providing

6 the facility, management, personnel and services for the detainees in custody at the NWIPC

7 insofar as it relates to work, housing and recreation areas accessible to detainees.
8
9. ICE refers the Court to the March 27, 2020 declarations of OIC Bostock (Dkt.
9
No. 66) and March 26, 2020 declaration of Deputy Assistant Director for Clinical Services Dr.
10
11 Ada Rivera (Dkt. No. 65), setting forth the significant measures ICE, GEO, IHSC and the

12 Executive Office for Immigration Review (“EOIR”) have implemented to prevent the spread of

13 COVID-19 within the facility, including but not limited to:

14
a. Medical prescreening procedures for all arriving detainees prior to physically
15

16

entering the facility in order to identify and prevent possible spread of COVID-19

17

to other detainees, staff and surfaces; (Bostock Decl., Dkt. No. 66, ¶ 11)

18

b. Additional initial medical screening of detainees for medical conditions and

19
possible COVID-19 symptoms upon intake to identify detainees who may

20

21

possibly have or been exposed to COVID-19; (Rivera Decl, Dkt. No. 65, ¶ 9)

22

c. Medical isolation, testing and cohorting in cases where there has been possible

23

exposure to COVID-19 to prevent spread to other detainees; (Rivera Decl, Dkt.

24

No. 65, ¶ 10)

25

d. Placement of all incoming detainee property in storage to prevent contact
26

27

contamination; (Bostock Decl., Dkt. No. 66, ¶ 12)

28

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 3

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 4 of 15

1

e. Provision of all arriving detainees with hygiene supplies and educational flyers

2

regarding the important of hand hygiene and covering coughs to prevent the

3
spread of COVID-19; (Bostock Decl., Dkt. No. 66, ¶ 13)
4

5

f. Housing of all incoming detainees in designated, celled housing units for a

6

mandatory 14-day observation period before release to general population to

7

ensure that arriving detainees are COVID-19 free before being released into

8
general population; (Bostock Decl., Dkt. No. 66, ¶ 14)
9
g. Increased sanitation by GEO staff of all high contact areas, housing units and
10

11

work areas within the NWIPC; (Bostock Decl., Dkt. No. 66, ¶ 16)

12

h. Stocking and distribution of soap and sanitation supplies within detainee housing

13

units so that detainees can maintain personal hygiene and perform additional

14
sanitation of tables, telephones, tablets and other high contact surfaces with every
15

16

use to prevent the possible spread of COVID-19; (Bostock Decl., Dkt. No. 66, ¶

17

17)

18

i. Weekly education meetings by GEO to explain and demonstrate proper sanitation

19
of high contact surfaces; (Bostock Decl., Dkt. No. 66, ¶ 18)

20

21

j. Prescreening of all employees and staff (GEO, ICE, EOIR, etc) prior to entrance

22

to the facility, including temperature checks, to prevent employees from spreading

23

COVID-19 to detainees;1 (Bostock Decl., Dkt. No. 66, ¶ 24)

24

k. Prohibitions on social visitation and limitations on contact attorney visits to

25

prevent outside visitors from spreading COVID-19 to detainees; (Bostock Decl.,
26

27

Dkt. No. 66, ¶ 19, 20, 22)

28 1 To assist in this, entrance to the NWIPC for all incoming staff and visitors is currently limited to a single, main entrance.

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 4

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 5 of 15

1

l. Education of GEO and ICE employees regarding the importance of hand hygiene,

2

covering coughs and the implementation of telework programs to prevent the

3
possible spread of COVID-19 between staff and from staff to detainees; (Bostock
4

5

Decl., Dkt. No. 66, ¶ 23)

6

m. Instructions to GEO and ICE staff to stay home if they are sick, experiencing any

7

symptoms of COVID-19, or have been in close contact with someone exposed to

8
COVID-19 in order to prevent the possible spread of COVID-19 to detainees and
9
staff; (Bostock Decl., Dkt. No. 66, ¶ 25)
10

11

n. and various measures implemented by EOIR and ICE so that detainees,

12

Immigration Judge and attorneys for both sides can conduct hearings or resolve

13

cases without being in the same room in order to prevent the spread of COVID-

14
19. (Bostock Decl., Dkt. No. 66, ¶ 28-30)
15

16

Court’s Question 4

17

How many tests for COVID-19 have Defendants conducted on (a) all individuals present

at NWDC, including ICE employees, and (b) of that number, how many tests for

18

COVID-19 have Defendants conducted specifically on detainees at NWDC? Have any of

19

those tests returned positive identifications of COVID-19?

20

Detainees

21

10. ICE itself does not conduct testing for COVID-19 on any individuals present at

22 the NWIPC except for detainees within the care of ICE’s Health Services Corps (“IHSC”).

23
11. As of April 3, 2020, three detainees at the NWIPC have been tested for COVID-
24
19. All of those tests results were negative.
25

26

ICE and GEO Employees

27

28

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 5

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 6 of 15

1

12. Both GEO and ICE employees who are ill or believe they may have been exposed

2 to COVID-19 are instructed to follow the advice of their personal care providers, including

3
regarding testing for COVID-19.
4

5

13. GEO and ICE employees who are tested for COVID-19 are instructed to remain

6 self-isolated at home until they receive test results and not to come to the NWIPC.

7

14. Any GEO or ICE employee who tests positive for COVID-19 is instructed to

8
remain at home for at least 14-days or longer, as instructed by their personal care provider.
9
15. As of April 3, 2020, no ICE employees at the NWIPC have reported being tested
10

11 for or diagnosed with COVID-19.

12

16. As of April 3, 2020, GEO has notified ICE of three GEO employees at the

13 NWIPC who have been tested for COVID-19. Two received negative test results. Test results

14
for the third employee are currently pending.
15

16

17. GEO has informed ICE that GEO employees who are tested for COVID-19 are

17 required to provide a doctor’s letter clearing the employee to return to work before the employee

18 will be permitted to return to the NWIPC.

19
EOIR Employees

20

21

18. As of April 2, 2020, the Executive Office for Review (“EOIR”) has not reported

22 to ICE that any of its employees at the NWIPC have been tested for or diagnosed with COVID-

23 19.

24

Private Bar Attorneys

25

19. ICE cannot speak to whether any private bar attorneys or their accompanying staff
26

27 (such as interpreters) who have appeared at the NWIPC have been tested for or diagnosed with

28

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 6

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 7 of 15

1 COVID-19 as they are not required to report such information to ICE or EOIR, though ICE

2 anticipates that most attorneys would so as a matter of courtesy.
3
20. As explained in paragraphs 22 and 28-30 of my March 27, 2020, ICE, GEO and
4
5 EOIR have implemented significant safety measures to limit contact visits and the need for

6 private bar attorneys to be physically present at the NWIPC for immigration hearings in order to

7 limit the possibility that they could expose detainees or facility staff to COVID-19.

8
Court’s Question 5

9

How many detainees at NWDC have been placed in isolation for the “14-day observation

10

period” or otherwise been quarantined or isolated due to screening results, symptoms, or

11

any other COVID-19-related reason?

12

Isolation Due to Screening Results, Symptoms or other Specific COVID-19 Reasons

13

21. ICE refers the Court to the declaration of Dr. Malakahova, IHSC Clinical Director

14 at the NWIPC for a full answer to this question.
15
14-Day Observation Monitoring
16
22. Since March 20, 2020, all incoming detainees to the NWIPC who do not meet the
17
18 current IHSC protocol requirements for isolation monitoring due to possible COVID-19

19 symptoms, exposure or testing, are placed in separate special housing units for 14 days of

20 observation monitoring for signs or symptoms of COVID-19, as described in my March 27, 2020

21
declaration.
22
23.
23

As of March 30, 2020, there are now three housing units at the NWIPC being

24 used for this purpose, two for male detainees and one for female detainees. A third housing unit

25 was added in the last week because detainees arriving on different dates and different risk

26 classification levels cannot be commingled and to allow GEO to house fewer detainees per cell.
27
24. A remote medical unit has been set up to monitor detainees in these observation
28
units. IHSC has limited medical staff rotation at this post to reduce the likelihood that IHSC

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 7

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 8 of 15

1 staff will become infected and spread COVID-19 to the remaining detainee population or other

2 staff.
3
25. On April 2, 2020, GEO informed ICE that 65 detainees have been separated from
4
5 the general population in these 14-day observation housing units. However, fifteen of the

6 detainees from the 14-day observation housing units have been released from ICE custody prior

7 to expiration of the 14-day period.2

8
Court’s Questions 6

9

What is the total number of detainees that have been transferred to or otherwise placed at

10

NWDC since March 1, 2020?

11

26. As of the morning of April 3, 2020, there have been 407 arriving detainees and

12
399 departing detainees3 at the NWIPC since March 1, 2020.
13
27. The numbers of incoming and departing detainees by date are as follows:
14

15

Date

Arrivals

Departures

16

3/1/2020

1384

1

17

3/2/2020

2

16

18

3/3/2020

13

58

19

3/4/2020

17

13

20

3/5/2020

23

8

21

3/6/2020

7

12

22

3/7/2020

6

2

23

3/8/2020

3

0

24

25

26 2 These detainees were released for various reasons, such as posting bond. 3 Departing detainees primarily consist of those who are released on bond, parole or some other form of release;
27 detainees whose applications for relief from removal have been granted by an Immigration Judge; and detainees being removed from the United States pursuant to final orders of removal.
28 4 Most of these arrivals are detainees transferred from the southern border. As explained in my March 27, 2020 declaration, ICE does not expect any transfers from the southern border during the COVID-19 crisis. (Bostock Decl., Dkt. No. 66, ¶ 7)

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 8

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 9 of 15

1

3/9/2020

1

7

2

3/10/2020

13

50

3

3/11/2020

8

5

4

3/12/2020

19

7

5

3/13/2020

12

8

6

3/14/2020

5

2

7

3/15/2020

1

1

8

3/16/2020

7

7

9

3/17/2020

18

41

10

3/18/2020

10

9

11

3/19/2020

18

6

12

3/20/2020

7

3

13

3/21/2020

1

1

14

3/22/2020

4

0

15

3/23/2020

8

3

16

3/24/2020

8

52

17

3/25/2020

15

8

18

3/26/2020

12

5

19

3/27/2020

1

2

20

3/28/2020

5

2

21

3/29/2020

3

0

22

3/30/2020

5

4

23

3/31/2020

6

60

24

4/1/2020

5

1

25

4/2/2020

6

5

26

407

399

27

28

28. The following is a chart showing how arrivals and departures at the NWIPC have

progressed since March1, 2020:

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 9

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 10 of 15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16
29. As of the morning of April 3, 2020, the NWIPC is currently housing 794
17
18 detainees, or 50.4% of its 1,575 detainee capacity.

19

Court’s Question 7

20

In addition to isolating any individual who shows symptoms or tests positive for COVID-

21

19, what are Defendants’ current plans, if any, in the event of a COVID-19 outbreak at

NWDC—especially if it becomes widespread—to (a) provide medical care for detainees

22

who contract COVID-19, particularly detainees who are elderly and/or have serious

23

medical conditions and (b) manage the COVID-19 outbreak to minimize the possibility of spread to other individuals within NWDC and to the public at large?

24
30. Detainee health and safety are a priority for ICE. Since the onset of the COVID-
25

26 19 outbreak, ICE has been regularly assessing current conditions and future projections

27 regarding the course of the virus, regularly updating prevention and control protocols, and

28 working with IHSC, GEO and EOIR staff to ensure appropriate screening and other procedures

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 10

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 11 of 15

1 to control the spread of COVID-19 are implemented at the NWIPC in compliance with the

2 Centers for Disease Control’s (“CDC”) Interim Guidance on the Management of Coronavirus

3
Disease 2019 (COVID-19) in Correctional and Detention Facilities.
4

5

31. Detailed descriptions of IHSC’s COVID-19 screening and prevention protocols,

6 including isolation and testing of detainees for COVID-19 and cohorting of asymptomatic

7 detainees who were previously housed with a detainee undergoing testing to minimize spread of

8
the virus are provided in the March 18, 2020 and March 26, 2020 declarations of IHSC Deputy
9
Assistant Director for Clinical Services Dr. Ada Rivera.
10

11

32. Detainees who are COVID-19 positive or presumptive positive will be housed

12 individually first in the NWIPC Medical Housing Unit (“MHU”). Two additional housing units

13 at the NWIPC have been designated as medical overflow units to house additional COVID-19
14
positive and presumptive positive detainees should space become unavailable in the MHU.
15
16 These housing units contain individual cells so that detainees can be housed separately.

17

33. A remote medical unit has been set up for IHSC medical staff to treat detainees in

18 these medical overflow units.
19
34. In the event that a detainee at the NWIPC is diagnosed with COVID-19, such a
20
21 detainee will be assessed by IHSC to determine the detainee’s degree of illness. IHSC will
22 provide medical care to detainees who are diagnosed with COVID-19 to the point that medical

23 staff determine a detainee requires hospital care. If IHSC determines that a detainee should be

24 transported to the hospital, the detainee will be transported to a local hospital as any other
25
resident of the state.
26

27

35. Detainees who are transferred from the NWIPC to the hospital for treatment are

28 still considered to be in ICE custody and therefore ICE is responsible for the financial costs of

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 11

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 12 of 15

1 their medical treatment. Any detainees released from ICE custody are independently responsible

2 for the financial costs of their medical treatment, or those costs are transferred to the

3
state/locality in which they choose to reside upon release.
4

5

Court’s Question 8

6

In the event of a COVID-19 outbreak, do Defendants’ current plans include the

possibility of release of detainees from NWDC? If so, how will Defendants determine

7

which detainees will be released and how do Defendants plan to prevent or minimize the

risk of the spread of COVID-19 from those released detainees to the public at large?
8

9

36. As stated in my prior March 27, 2020 declaration, ICE is conducting a

10 discretionary review of certain detainees identified by IHSC, based on their medical records, as

11 having a medical condition that places the detainee at-risk for COVID-19 according to CDC

12
guidelines, to determine whether each detainee is legally eligible for release, and if so, whether
13
release is appropriate. These reviews are continuing at this time.
14

15

37. ICE is also adjudicating incoming parole requests submitted by detainees and/or

16 their legal representatives.

17

38. All cases are currently being reviewed by ICE on an individualized basis to

18
determine in the totality of the circumstances if the detainee is a danger to the community or a
19

20 significant flight risk such that release is not appropriate.

21

39. ICE will continue to assess the cases of all detainees at the NWIPC on a case-by

22 case-basis as circumstances change.
23
40. Because the majority of detainees who have arrived at the NWIPC since the
24
25 beginning of March 2020 came into custody as the result of local apprehensions within the

26

27

28

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 12

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 13 of 15

1 Seattle Field Office’s Area of Responsibility (“AOR”), ICE expects that most of those detainees

2 will be returning to reside within the AOR if they were to be released.5
3
41. ICE is conscious of the potential danger to the public that could result from the
4
5 release of COVID-19 positive or suspected positive detainees. To that end, ICE does not intend

6 to exercise its discretion to release a detainee who is waiting for COVID-19 test results or who

7 has tested positive for COVID-19 and is still under medical treatment for COVID-19. In the

8
event that ICE identified such a detainee that it deemed eligible for discretionary release, ICE
9
would wait until the detainee had been medically cleared by IHSC for release to the community.
10

11

42. Not all detainees are legally eligible for release on parole pursuant to Section

12 212(d)(5)(A) of the Immigration and Nationality Act (“INA”) and 8 C.F.R. § 212.5 (commonly

13 referred to as “humanitarian parole”), release on recognizance, bond or conditional parole
14
pursuant to INA § 236(a), or release on an Order of Supervision pursuant to 8 C.F.R. § 241.4.
15
16 Many detainees are subject to mandatory custody pursuant to INA §§ 235(b), 236(c) and 241(a).

17

43. Conversely, ICE may not legally continue to detain an alien who is legally

18 entitled to release, e.g. an alien who has been granted and posted bond, granted relief from
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removal by an Immigration Judge, or had their removal proceedings terminated. In the event
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21 that a COVID-19 positive or suspected COVID-19 positive detainee at the NWIPC were legally
22 eligible for release, ICE would be required to release that detainee. Prior to release, however,

23 IHSC would notify the Pierce County Health Department and/or the Washington Department of
24 Health to provide them the county and/or state the opportunity take whatever action they deem
25

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27 5 The ICE Seattle Field Office’s AOR consists of Alaska, Washington and Oregon. However, very few detainees are brought into custody from Alaska. The NWIPC also receives some of aliens apprehended in Idaho and Montana
28 as there are no detained Immigration Court dockets in those states. However, Idaho and Montana officially fall within the AOR for the Salt Lake City ERO Field Office and therefore aliens apprehended in those states may be sent to detention facilities within that AOR.

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 13

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 14 of 15

1 necessary and appropriate concerning the detainee’s release. To the extent possible, ICE would

2 follow their recommendations regarding arrangements for release.

3
Court’s Question 9

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Do Defendants currently possess the resources and ability to fully execute the plans

5

referenced above, including necessary medical personnel, facilities, and equipment,

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including personal protective equipment?

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44. ICE refers the Court to the declaration of Dr. Malakhova, Clinical Director for

8 IHSC at the NWIPC for a full answer to this question.

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Court’s Question 10

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As part of Defendants’ case-by-case review for release of at-risk detainees who are not

11

subject to mandatory detention provisions, how is each detainee’s criminal history taken

12

into account in determining whether to release that individual? (See Bostock Decl. ¶ 31.)

13

45. In considering release, ICE considers several factors, including the immigration

14 and criminal histories of detainees who are not mandatory custody, to determine under a totality
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of the circumstances whether the detainee is a danger or a significant flight risk such that release
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17 is not appropriate. Criminal history may be considered both when assessing danger and flight
18 risk. Specific factors that may be weighed in this individualized analysis include, but are not

19 limited to: the number, age, nature and severity of the detainee’s arrests and criminal
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convictions; sentences imposed and time actually served; past bench warrants, charges and
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convictions for failures to appear and/or failures to comply with court or other violations of court
22
23 orders; probation and criminal parole history; evidence of recidivism and other criminal history,

24 including current outstanding criminal warrants and no contact orders.

25 //
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//
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28 //

DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 14

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970

Case 2:20-cv-00409-JLR-MAT Document 76 Filed 04/03/20 Page 15 of 15

1

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is

2 true and correct to the best of my knowledge and belief.

3

4

Executed this 3rd day of April, 2020,

5

DREW H

Digitally signed by DREW H BOSTOCK

BOSTOCK

Date: 2020.04.03 12:25:00 -07'00'

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Drew H. Bostock

7

Officer in Charge

U.S. Department of Homeland Security

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U.S. Immigration and Customs Enforcement

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Tacoma, Washington

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DREW H. BOSTOCK SUPPLEMENTAL DECLARATION Case No. C20-0409-JLR-MAT - 15

UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101 (206) 553-7970


In March 2020, during the outbreak of COVID-19 in the Seattle area, persons critically vulnerable to the disease and held in an immigration detention facility near Seattle filed this suit in the U.S. District Court for the Western District of Washington. The plaintiffs sued ICE and its directors for violation of their constitutional rights. The plaintiffs argued that continued detention in the face of a potential outbreak in the detention facility would expose the plaintiffs to substantial harm and amount to punishment in violation of the Due Process Clause. On March 19, the court denied the plaintiffs' motion for a temporary restraining order seeking immediate release. The court also denied the plaintiffs' second motion for a temporary restraining order on April 8. The defendants filed a motion to dismiss on April 30, which the court has not yet resolved. The case is ongoing.