By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief
SAN FRANCISCO – A federal judge – already not happy with the government’s responses to a lawsuit critical of COVID-19 protection for immigration detainees – Tuesday ok’d a preliminary injunction to a myriad of lawyers advocating for the ICE detainees.
This is the first class action in California challenging conditions of detention filed on behalf of everyone detained at Yuba County Jail in Marysville and the Mesa Verde Detention Facility in Bakersfield.
The judge’s order supplemented his TRO (temporary restraining order) in late April that required ICE to identify people to release in the face of the social distancing and other problems at the center.
At that time, Judge Vince Chhabria of the U.S. District Court of Northern California rejected the government’s argument for a delay and voiced impatience with attempts by ICE to slow down the class action.
Since then, the two detention centers have shed more than half of the estimated 427 detainees in late April. They currently hold about 200 people.
Now, the judge is orderig ICE to “lock in place the safety improvements achieved in recent weeks.”
In the new order, Chhabria again openly chided ICE and its “obstinance” in opposing release of individuals “on a blanket basis” in “positions that are downright irrational, not to mention inhumane.”
The order noted, “ICE’s conduct and attitude towards its detainees at Mesa Verde and Yuba County Jail since the pandemic began have shown beyond doubt that ICE cannot currently be trusted to prevent constitutional violations at these particular facilities without judicial intervention.”
Chhabria knocked ICE’s representation to the court that it was quarantining people transferred into Mesa Verde and Yuba Jail. In fact, it’s been learned that at least two people previously held in jail 
populations with dozens of coronavirus infections were released directly into the main population without any isolation.
Earlier, Chhabria ordered a review of all those incarcerated to identify people for release in order to enable social distancing inside the centers, noting, “The plaintiffs have demonstrated an exceedingly strong likelihood that they will prevail on their claim that current conditions at the facilities violate class members’ due process rights by unreasonably exposing them to a significant risk of harm.”
He also ordered ICE to provide names, ages, health vulnerabilities and any criminal information for each of the 400 some odd detainees, suggesting that the court may “implement a system for considering individual bail applications” even before the preliminary injunction hearing Tuesday.
The federal judge was extremely critical of ICE’s handling of the matter.
“(G)iven ICE’s failure thus far to respond meaningfully to the crisis despite the wave of court rulings from around the country documenting the agency’s inaction, given that ICE does not even currently possess a list of detainees with health vulnerabilities, and given the lack of specificity in ICE’s alternative remedy proposal,” anything less than his order in April would create delay rather than meaningful improvements in the conditions of confinement at the facilities,” Chhabria said.
“The fact that ICE does not have such a list at the ready, (six weeks as of late April) after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities,” he added.
The federal judge commented that “plaintiffs have demonstrated a strong likelihood of irreparable harm to the class,” mocking ICE’s claim it had not discovered any COVID-19 cases, noting “this is not especially comforting given that only two detainees have been tested.”
The court also pointed out that over the last few months “dozens of offenders sentenced for street-level drug crimes and transported on detainers from the Santa Rita Jail (where there has been COVID-19 cases) in Alameda County to these ICE facilities. The conditions of confinement do not merely threaten detainees; they also threaten facility staff, not to mention the greater community whose health is put at risk by the congregation of large groups in cramped spaces.”
Plaintiffs’ counsel has repeatedly argued that immigrants at both of these facilities sleep in packed dormitory rooms on bunk beds bolted to the floor only a few feet from each other. They use shared bathrooms, shoulder to shoulder with someone at the next sink and arm’s length from the next stall. They line up to get meals in crowded cafeterias, and are not provided resources for adequate sanitation and hygiene.
People detained at Mesa Verde held a recent hunger strike challenging their continued detention in unsafe conditions amid this pandemic. Yuba County detainees have held several hunger strikes over the last year or so because of “inhumane” conditions there.
Chhabria opined in his ruling: “At root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities. The primary question is whether the people detained at those facilities are being exposed to an unreasonable risk of infection in violation of the Due Process Clause.”
The judge said he agreed with the plaintiffs, who argued in their pleading that “class members have suffered the same injury—the substantial risk of contracting COVID-19 due to the lack of social distancing—and all class members would benefit from the same remedy—an order requiring social distancing at Yuba and Mesa Verde.”
“The likelihood,” added the federal judge, “that some people would need to be released as part of the effort to alleviate dangerous conditions at the jail (presumably by prioritizing people who have health vulnerabilities and whose records indicate they are not a danger to the community) does not change the ultimate relief the plaintiffs seek.”
“Today a federal court confirmed that ICE cannot be trusted to protect the health and safety of those in its custody,” said Mano Raju, the elected Public Defender of San Francisco, and co-counsel in the litigation. “We are pleased with the decision, and our Immigration Unit will not stop fighting until every person is released from these inhumane conditions.”
“The Court’s order lays bare ICE’s utter disregard for both the law and the safety of people in its custody,” said Bree Bernwanger of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. “The need for court intervention is a sign of systemic failure: we cannot trust law enforcement agencies to protect the value of human life.”
“This result represents a major step toward protecting our clients from COVID-19 and shielding the healthcare systems in surrounding communities,” said Martin Schenker, Cooley LLP partner. “ICE must not remain indifferent to the health of detainees under its control.”
“Today’s decision affirms a truth our clients have lived with for months: ICE cannot be trusted to responsibly address the deadly threat of COVID-19 to immigrants in its custody,” said Jordan Wells, staff attorney at the ACLU of Southern California.
“Judge Chhabria rightly rejected the government’s assertions that district courts lack the authority to remedy ICE’s constitutional violations and release individuals during a life-threatening pandemic. That is plainly false,” said Judah Lakin of Lakin & Wille LLP.
“This order is a critical first step in keeping in place the protections that our clients have fought hard for, and we will continue that fight alongside them,” said Angélica Salceda of the ACLU Foundation of Northern California.
“Release to me has meant everything; a person can’t stay healthy, can’t stay safe in there,” said Livia Pinheiro, who was released May 26. “My girlfriend is still detained; she’s suffering and she’s also at high risk. I want to be part of that fight for her, the same way people fought for me.”
“In my final days there, I had just had an operation, and the jail put me inside a dirty cell in which I didn’t have water,” said Jose Luis Lopez Guevara, a 78-year-old who underwent heart surgery in ICE custody, and whom the Court ordered released, over ICE’s opposition. “There are still so many people in the jail, suffering in the same conditions, and they must be released too.”
A coalition of legal organizations is representing the plaintiffs, including the San Francisco Public Defender’s Office, the American Civil Liberties Union Foundations of Northern California and Southern California, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the law firms of Lakin & Wille LLP and Cooley LLP.
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