SF Public Defender Sues for Release of ICE Detainees to Reduce Crowding

Inside the Yuba County Jail in Marysville, California, where an immigrant detainee with chronic health conditions is suing ICE to be released due to the coronavirus outbreak.  (Courtesy Rosen Bien Galvan & Grunfeld LLP)

Immigrant advocates and San Francisco’s public defender announced a class-action lawsuit against U.S. Immigration and Customs Enforcement Tuesday, calling for a substantial reduction in the population at two immigration detention centers in California, which they say is the only way of protecting detainees from the coronavirus.

The suit, which was filed in federal district court in San Francisco Monday, is the first class action filed on behalf of more than 400 people detained by ICE at the Yuba County Jail and the Mesa Verde ICE Processing Facility, a private prison in Bakersfield, according to the plaintiffs.

None of the detained people in either facility have yet been diagnosed with COVID-19. But unless ICE can reduce the population enough to permit detainees to maintain social distancing of 6 feet or more, it’s just a matter of time advocates say.

“The detainees in these facilities live in crowded, shared spaces,” according to the complaint. “Many sleep and spend most waking hours within arm’s reach of one another in assigned bunk beds in cramped dormitories. They share dining areas, standing inches apart as they wait in line for food and then sitting shoulder to shoulder as they eat on chairs that are bolted to the floor.”

At a news conference Tuesday, Charles Joseph, a Sacramento resident who was released from Mesa Verde on April 13 under a judge’s orders, said he felt ICE treated the health of detainees with disregard.

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“They continue to fill dorms to capacity with people who could be carriers. There are 100 bunks in one room,” said Joseph. “This pandemic has caused us not to be quiet anymore, because our detention for a civil matter may be a death sentence.”

Joseph said he had joined a sit-in and a hunger strike at Mesa Verde to protest conditions. The lawsuit also seeks to prevent ICE from retaliating against those who participate in such protests, and asked the court to set aside an ICE policy that prohibits “engaging in or inciting a group demonstration.”

ICE will not comment on pending litigation, the agency said in a statement released by spokesman Jonathan Moor.

The statement also said that the agency “is taking all necessary precautionary measures to ensure all ICE detainees are screened medically upon their arrival to our facilities. Comprehensive protocols are in place for the protection of staff and detainee patients, including the appropriate use of personal protective equipment (PPE), in accordance with CDC guidance ... . As an additional measure of defense, ICE detainees suspected of exposure or infection of certain diseases are medically ‘cohorted,’ in line with CDC guidelines and ICE detention standards.”

The agency added that starting April 17, people detained at Mesa Verde would receive surgical masks every Monday, Wednesday and Friday during the pandemic.

As of Tuesday evening, 253 ICE detainees had been diagnosed with COVID-19 across the country, along with 32 ICE agents working in detention centers.

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An outbreak at the Otay Mesa Detention Center in San Diego has infected 29 detained immigrants and at least 16 staff members from both ICE and the company that operates the jail, CoreCivic. It is the only one of the four ICE facilities in California to report coronavirus cases.

Immigration lawyers representing detainees at the Yuba County Jail and Mesa Verde say they don’t believe ICE is testing people for coronavirus at either location. Moor, the ICE spokesman, said he did not know whether COVID-19 tests have been performed on anyone at the facilities.

Last week, U.S. Sens. Kamala Harris and Dianne Feinstein, along with Rep. Juan Vargas, D-San Diego, called on the Department of Homeland Security’s inspector general to investigate an incident at Otay Mesa in which some detainees say they were pepper-sprayed or threatened with pepper spray when they resisted guards’ requirement that they sign liability release forms in order to receive protective masks.

ICE has reduced the number of people in custody nationally, from more than 38,000 three weeks ago to a total of just over 32,000 as of April 11. There were 3,402 people in ICE’s four California detention facilities as of March 28, according to the most recent data available.

ICE officials said they have released almost 700 medically vulnerable immigrants, including pregnant women and people over 60. Many of these releases have been ordered by courts responding to a series of lawsuits filed in recent weeks by advocates around the country, including at least 10 in California.

The San Francisco lawsuit comes just one day after a federal judge in Los Angeles ordered ICE to promptly identify every person in its custody nationally who is at risk for coronavirus complications and to consider each one for release.

In the Los Angeles case, U.S. District Judge Jesus Bernal gave ICE 10 days to identify all detainees who are over 55 years old, pregnant or suffer from chronic health conditions. He wrote that ICE’s policies and delayed response were likely to subject them to a “substantial risk of serious harm” and amounted to “callous indifference” to their safety and well-being.

Bernal also pointed out that ICE has the option to release people — including medically vulnerable individuals — “on bond or conditional parole.”

In announcing the San Francisco lawsuit Tuesday, Bree Bernwanger, an attorney with the Lawyers' Committee for Civil Rights, said plaintiffs were asking the court to order ICE to release enough people to make the facilities safe for those who remain inside.

"The conditions of confinement in both facilities is unconstitutional and incredibly dangerous," Bernwanger said.