They Were Released From Prison Into ICE Detention in a Pandemic. Now They're Seeking Damages

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Protesters hold signs outside the Mesa Verde ICE Processing Center in Bakersfield on June 4, 2020  (Courtesy of Tania Bernal/California Immigrant Youth Justice Alliance)

Four men who were set to be released from California prisons earlier this year but were instead handed over to federal immigration authorities for potential deportation are seeking thousands of dollars in damages from the state.

The claims, filed Tuesday by the American Civil Liberties Union of Northern California and Asian Law Caucus, seek over $25,000 for each of the former inmates, who allege they have suffered harms and higher health risks from COVID-19 while locked up at immigration detention centers that faced outbreaks.

The claimants include an American citizen who was erroneously held by U.S. Immigration and Customs Enforcement after being released from state prison, according to the filings, and a father of two originally from the Philippines who became seriously ill after contracting COVID-19 at an ICE facility in Bakersfield.

Their cases may be the first to challenge the state’s so-called ICE transfers as illegal and even negligent during the pandemic, said ACLU attorney Vasudha Talla.

Officials with the California Department of Corrections and Rehabilitation are jeopardizing the safety of people who have served sentences by turning them over to ICE, instead of releasing them to the community, she said.

“CDCR officials know the conditions at ICE facilities are so terrible that they are very likely to contract COVID-19 and have serious complications,” said Talla, who directs the ACLU’s Immigrant Rights Program. “And their continuing to transfer people despite having that knowledge is unconstitutional."

The claims target CDCR Secretary Kathleen Allison and Gov. Gavin Newsom, who has so far resisted calls from dozens of state lawmakers and immigrant advocates to stop ICE transfers.

CDCR, which is exempt from California's sanctuary law, routinely cooperates with federal immigration authorities.

This year, state prison officials have handed over more than 1,200 inmates to ICE, according to estimates by the San Francisco-based Asian Law Caucus.

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At a recent state Senate hearing, a CDCR official said the agency must honor ICE requests. But advocates and state Sen. Scott Wiener, D-San Francisco, who opposes the practice, said the agency has no legal obligation to ICE.

A CDCR spokeswoman said the agency couldn’t comment on the pending claims, which can be precursors to a lawsuit.

“CDCR cannot comment on the specifics of pending legal claims,” said agency spokeswoman Dana Simas, in a statement. “To protect public safety, CDCR cooperates with all local, state, and federal law enforcement agencies that have an active hold or detainer for a current California state prison inmate.”

Neither Gov. Newsom’s office nor ICE immediately responded to requests for comment.

Since the start of the pandemic, nearly 25,000 people incarcerated in California prisons have contracted COVID-19, according to CDCR figures, and nearly 8,000 ICE detainees nationwide have tested positive.

Last week, a federal judge in San Francisco condemned officials with ICE and the GEO Group, a private prison company, for their treatment of detainees at a facility in Bakersfield during the pandemic. U.S. District Judge Vince Chhabria said ICE and GEO made “no meaningful effort to prevent and were totally unprepared to respond to” a severe coronavirus outbreak that sickened dozens of immigrants held at the Mesa Verde facility.

Chhabria also said ICE and GEO Group officials had repeatedly lied to his court, deliberately avoided testing detainees, and that their conduct since the pandemic began had been “appalling.”

One of the detainee claimants who got sick during the summer COVID-19 outbreak at Mesa Verde was John Victorio, a 41-year old Filipino immigrant who was transferred from the Shafter State Prison to the detention center in July.

Victorio, who suffers from asthma and other medical issues, was diagnosed with pneumonia after testing positive for the coronavirus in August. He claims Mesa Verde staff took 10 days to give him an inhaler after he was confirmed positive. Months after, he still struggled to breathe at night, according to the filings.

Victorio, the father of two U.S. citizen children, is still being held at Mesa Verde where he is fighting his deportation case. He said that detention has felt like additional punishment after completing his sentence for drug-related convictions.

“When I thought I was going to be released after serving my time in CDCR, I thought I saw a light at the end of the tunnel. I was ready to see my kids,” said Victorio, who has lived in the U.S. since age 14, in a statement. “But now that they’ve transferred me to ICE, I don’t even see a light. I’m still doing time when I already did my time.”

Brian Bukle with his son in an undated photo. Bukle, a U.S. citizen born in the British Virgin Islands, is one of four claimants seeking damages from California after he was mistakenly transferred to ICE custody upon completion of his state prison sentence. He was held for over a month at an ICE detention center as COVID-19 was sweeping through the facility. (Courtesy of Brian Bukle)

Another claimant is Brian Bukle, a 61-year-old U.S. citizen who was originally born in the British Virgin Islands. He was set to be released from state prison in June after completing a five-year conviction for assault, said ACLU attorney Talla.

But due to errors in the electronic databases that ICE uses to identify immigrants for arrest, the agency held him at Mesa Verde for over a month while COVID-19 was sweeping through the facility, according to his claim. ICE finally released him in July, after acknowledging his American citizenship.

“It was important for me to file this claim because I want justice for the pain I went through, and because I want state officials to stop doing this to other people,” said Bukle in a statement. “I want them to stop this nightmare of uncertainty and fear.”

The two other claimants are immigrants who served their sentences in state prison and are now fighting deportation proceedings.

Jenny Zhao, an attorney with the Asian Law Caucus, said the claims also challenge the practice by state prison officials of handing over formerly incarcerated people to private contractors ICE hires to make arrests.

Zhao said the practice is illegal because federal law does not grant authority to private contractors, including a company called G4S Secure Solutions, to make immigration arrests.

The claims filed with the state’s Office of Risk and Insurance Management are a prerequisite for the former inmates to be able to sue for money damages in court later on, said the ACLU’s Talla.

“We're hoping the state does the right thing, resolves these claims, stops the transfers from happening in the future and then hopefully no lawsuit is needed,” she said.