Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 1 of 57

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE; IWAN RAHARDJA JESUS DE LA PENA; RAKIBU ADAM DUC VIET LAM; YELENA MUKHINA NAHOM GEBRETNISAE; ISMAIL MUHAMMED; GLENN WEITHERS KONSTANTIN BUGARENKO; BRISIO BALDERAS-DOMINGUEZ; VIVIANA CEBALLOS; WILDERS PAUL; MARCOS JAVIER ORTIZ MATOS; ALEXANDER ALVARENGA ARMANDO AVECILLA; COSWIN RICARDO MURRAY; EDWIN LUIS CRISOSTOMO RODRIGUEZ; ELDON BERNARD BRIETTE; DEMBO SANNOH; JESUS ANGEL JUAREZ PANTOJA; and ALGER FRANCOIS,

Case No. ________

Petitioners-Plaintiffs, vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison; CRAIG A. LOWE, in his official capacity as Warden of Pike County Correctional Facility; SIMONA FLORES-LUND, in her official capacity as Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; and CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security,
Respondents-Defendants.

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF

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INTRODUCTION Petitioners/Plaintiffs (hereafter “Petitioners”) are a diverse group of twentytwo individuals from around the world who are held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison and Pike County Correctional Facility while they await disposition of their immigration cases. They are united by the fact that they are over age 65 and/or adults who have a serious pre-existing medical condition, which the United States Centers for Disease Control has determined puts them at significantly higher risk of severe disease and death if they contract COVID-19. On March 31, this Court ordered ICE to release similarly-situated immigration detainees from these facilities because record evidence showed that, “adequate measures are not in place and cannot be taken to protect [such high-risk detainees] from COVID-19 in the [York, Clinton and Pike] detention facilities, and that [absent release] catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities.” See Thakker v. Doll, No. 1:20-cv-00480-JEJ, at *19 (M.D. Pa. Mar. 31, 2020) (elipses added). See also, id. at *9 (“Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical

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concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.”).1
The precarious situation facing the medically-at-risk petitioners in this case is in all material respects indistinguishable from Thakker, with one difference: the impending irreparable harm is far greater because the situation at York and Pike has deteriorated significantly since March 31, with quarantines in effect and reports of positive COVID-19 test results at both facilities. “[T]he status quo of a mere few [days] ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly.” Id. at 24. In light of the deteriorating conditions bearing down on these medically vulnerable petitioners, they respectfully ask this Court to issue a temporary restraining order directing their release forthwith.
JURSIDICTION AND VENUE 1. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
1 Filings in the Thakker v. Doll, Case No. 20-480 (M.D. Pa.) litigation will hereafter be referred to as Thakker Dkt. No. __.
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2. Venue lies in the United States District Court for the Middle District of Pennsylvania because Petitioners are detained by Respondents/Respondents (hereafter “Respondents”) at two county prisons – located in York and Pike counties – both of which are located within the Middle District. 28 U.S.C. § 2242. Venue is proper in the Middle District of Pennsylvania because a substantial portion of the relevant events occurred in the District and because several Respondents reside in the District. 28 U.S.C. § 1391(b), (e)(1).
PARTIES Petitioners
3. Petitioner Aaron Hope is a 32-year-old male native of Trinidad. Ex. 3 (Hope) at ¶ 1. He has been detained at York County Prison since September 15, 2019. Id. at ¶ 3. Mr. Hope has a series of respiratory problems—he has suffered from asthma since childhood, was hospitalized with pneumonia in 2012, and was diagnosed with sleep apnea in 2013—and was diagnosed with high blood pressure in 2017. Id. at ¶¶ 6-9. His underlying health conditions place him at high risk of severe illness or death if he contracts COVID-19.
4. Petitioner Iwan Rahardja is a 51-year-old a citizen of Indonesia who has lived in the U.S. for nearly 20 years. Ex. 4 (Rahardja) at ¶ 1. He has been detained by ICE at the York County Prison since February 27, 2020. Id. at ¶ 6. He
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suffers from diabetes and hypertension. Id. at ¶¶ 4, 5. These conditions place him at high risk of severe illness or death if he contracts, COVID-19.
5. Petitioner Jesus De La Pena is a 37-year-old man from Mexico who has lived in this country since age 6. Ex. 5 (De La Pena) at ¶ 1. He has been detained by ICE for a year at Pike County Correctional Center. Id. at ¶ 3. He suffers from severe asthma, hypertension and is over-weight. Id. at ¶¶ 4-7. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
6. Petitioner Rakibu Adam is a 34-year-old man from Ghana who has lived in the United States for approximately six years. Ex. 6 (Adam) ¶ 1. He has been detained by ICE at the York County Prison since October 2019. Id. at ¶ 3. He suffers from asthma and high blood pressure. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
7. Petitioner Duc Viet Lam is a 50-year-old man from Vietnam who has lived in the U.S. for 13 years. Ex. 7 (Viet Lam) at ¶ 1. He has been detained by ICE at the Pike County Correctional Center since January 2020. Id. at ¶ 3. He suffers from diabetes and high blood pressure. Id. at ¶ 4. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
8. Petitioner Yelena Mukhina is a 35-year-old woman from Ukraine. Ex. 8 (Mukhina) at ¶ 1. She has been detained at York County Prison since February 2020. Ms. Mukhina has asthma, a heart murmur, and hepatitis C. She has suffered
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with blood clots in her heart and also suffers from seizures when she is stressed. Id. at ¶¶ 5-8. Her underlying health conditions place her at high risk of severe illness or death if she contracts COVID-19.
9. Petitioner Nahom Gebretnisae is a 28-year-old man from Eritrea who has lived in the U.S. for more than 20 years. Ex. 9 (Gebretnisae) at ¶¶ 1, 2. He has been detained by ICE since February 18 at York County Prison. Id. at ¶ 3. He has for the past 13 years suffered from Crohn’s Disease and related arthritis and severe nerve and general pain, id. at ¶ 4, for which he takes many medications, id. at ¶¶ 511. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
10. Petitioner Ismail Muhammed is a 69-year-old man from Pakistan who has been in the U.S. since 2002. Ex. 10 (Ismael) at 1st un-numbered ¶ and ¶ 1. He has been held at the York County Prison since December 19, 2019. Id. at ¶ 1. He has recently lost about 25 pounds, suffered from asthma-type attacks, and is pre-diabetic. Id. at ¶¶ 3-8. His advanced age and medical condition place him at high risk of severe illness or death if he contracts COVID-19.
11. Glenn Weithers is a 59-year-old man from Guyana. He has lived in the United States for more than 32 years. Ex. 11 (Weithers) ¶ 1. He has been detained by ICE since January 2019. Id. at ¶ 4. Mr. Weithers suffers from emphysema and
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chronic obstructive pulmonary disease (COPD). Id. at ¶ 7. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
12. Petitioner Konstantin Bugarenko is 49-year-old man from Ukraine. He has lived in the United States for nearly 24 years as a lawful permanent resident. Ex. 12 (Bugarenko) ¶ 1. He has been detained by ICE since October 2017. Id. at ¶ 5. Mr. Bugarenko suffers from prediabetes, high blood pressure, and diverticulitis. Id. He also suffers re-occurring and debilitating pain in his feet that renders him temporarily unable to walk. Id. at ¶ 5. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
13. Petitioner Brisio Balderas-Dominguez is a 47-year-old man from Mexico who came to this country in 1991 after cartel members murdered his father, a judge. Ex. 13 (Balderas-Dominguez) at ¶¶ 1, 3. He has been detained by ICE for nearly three years at the Pike County Correctional Center. Id. at ¶ 5. He suffers from diabetes, atrial fibrillation and high blood pressure. Id. at ¶¶ 8, 9. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
14. Petitioner Viviana Ceballos is a 56-year-old woman from Argentina who has lived in the United States for over 29 years. Ex. 14 (Ceballos) ¶ 1. She became a lawful permanent resident in 1994. Id. She has been detained by ICE at York County Prison since March 2019. Id. at ¶ 7. She suffers from high blood
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pressure. Id. at ¶ 12. Her medical condition and age places her at a high risk of severe illness or death if she contracts COVID-19.
15. Petitioner Wilders Paul is a 32-yer old man from Haiti who has lived in the United States since he was three years old. Ex. 15 (Paul) ¶ 1. He is seeking adjustment of status through his wife. Id. He suffered a traumatic brain injury and suffers from seizures as well as headaches. Id. at ¶¶ 6,7. His medical condition places him at a high risk of severe illness or death if he contracts COVID-19.
16. Petitioner Marco Javier Ortiz Matos is a 32-year-old man from the Dominican Republic who has lived in this country for nearly 20 years. Ex. 16 (Ortiz Matos) at ¶¶ 1, 2. He has been detained by ICE since November 2019 at Pike County Correctional Center. Id. at ¶ 3. He suffers from diabetes. Id. at ¶¶ 4-7. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
17. Petitioner Alexander Alvaregna is a 46-year-old man from El Salvador. Ex. 17 (Alvaregna) at 1st unnumbered ¶ and ¶ 1. He has been detained at York County Prison since March 2, 2019. Id. at ¶ 5. He suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability due to a 2019 automobile accident. Id. at ¶¶ 7-11. His serious health conditions place him at high risk of severe illness or death if he contracts COVID-19.
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18. Petitioner Armando Avecilla is a 53-year-old native of Panama. Ex. 18 (Avecilla) at ¶ 1. He has been detained at Pike County Correctional Center since November 2019. Id. at ¶ 4. He suffers from diabetes. Id. at ¶ 6. His age and serious health conditions place him at high risk of severe illness or death if he contracts COVID-19.
19. Petitioner Coswin Ricardo Murray is a 45-year-old native of Barbados who has lived in this country for 33 years. Ex. 19 (Murray) at ¶¶ 1-2. His wife is suffering from advanced cancer. Id. at ¶ 2. He has been detained at Pike County Correctional Center since August 2019. Id. at ¶ 6. Mr. Murray suffers from asthma, for which Pike refuses to give him an inhaler. Id. at ¶¶ 7-8. His underlying medical condition places him at high risk of severe illness or death if he contracts COVID-19.
20. Petitioner Edwin Luis Crisostomo Rodriguez is a 31-year-old native of Dominican Republic who has lived in the U.S. since 2016. Ex. 20 (Rodriguez) ¶¶ 1,4. He has been detained since February 20, 2020, at the Pike County Correctional Center. Id. at ¶ 3. Mr. Crisostomo Rodriguez has suffered from asthma since childhood, id. at ¶ 7, which places him at high risk of severe illness or death if he contracts COVID-19.
21. Petitioner Eldon Bernard Briette is a 46-year-old man from Turks and Caicos who has lived in the U.S. for 35 years. Ex. 21 (Briette) at ¶ 1. He has been
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detained at the Pike County Correctional Center by ICE since November 12, 2019. Id. at ¶ 5. He suffers from diabetes, high blood pressure, high cholesterol, depression and anxiety. Id. at ¶¶ 6-9. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
22. Petitioner Dembo Sannoh is a 41-year-old man from Sierra Leone. Ex. 22 (Sannoh) ¶ 1. He has been detained by ICE at York County Prison since August 2019. He has diabetes, Hepatitis B, and a heart issue. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
23. Petitioner Jesus Angel Juarez Pantoja is a 36-year-old man from Mexico who has lived in the U.S. since age 6. Ex. 23 (Juarez Pantoja) at ¶ 1. He has been detained by ICE at York County Prison since November 2019. Id. at ¶ 2. He suffers from asthma, sleep apnea and high blood pressure. Id. at ¶¶ 3-6. These conditions place him at high risk of severe illness or death if he contracts COVID19.
24. Petitioner Duckens Max Alder Francois is a 45-year-old man from Haiti. Ex. 24 (Francois) ¶ 1. He has been detained by ICE at Pike County Correctional Facility for six months. Id. at ¶ 2. He has hypertension, pain when he urinates, and swollen feet. Id. at ¶ 6. He also has latent tuberculosis. His body max index qualifies him as obese. He has an intellectual disability. His cumulative
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medical conditions place him at a high risk of severe illness or death if he contracts COVID-19. Respondents
25. Respondent Simona Flores-Lund is the Field Office Director for Enforcement and Removal Operations (“ERO”) in the Philadelphia Field Office of Immigration and Customs Enforcement (“ICE”), an agency within the U.S. Department of Homeland Security. ERO is a division of ICE that manages and oversees the immigration detention system. In her capacity as Field Director for ERO, Respondent Flores-Lund exercises control over and is a custodian of immigration detainees held at all of the correctional facilities in Pennsylvania that house ICE detainees, including the two at issue in this case, namely, the York County Prison and the Pike County Correctional Facility. At all times relevant to this Complaint, Respondent Flores-Lund was acting within the scope and course of her employment with ICE. She is sued in her official capacity.
26. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Respondent Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Respondent Albence is a legal custodian of Petitioners. At all times relevant to this complaint, Respondent Albence was acting within the scope and course of his position as an ICE official. He is sued in his official capacity.
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27. Respondent ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. ERO, a division within ICE, manages and oversees the immigration detention system. Respondent ICE is a legal custodian of Petitioners.
28. Respondent Chad Wolf is sued in his official capacity as the Acting Secretary for DHS. In this capacity, he has responsibility for the administration of immigration laws pursuant to 8 U.S.C. § 1103(a), has authority over ICE and its field offices, and has authority to order the release of Petitioners. At all times relevant to this complaint, Mr. Wolf was acting within the scope and course of his position as the Acting Secretary for DHS. He also is a legal custodian of Petitioners.
29. Respondent Clair Doll is the Warden of the York County Prison in York, Pennsylvania, where Petitioners Aaron Hope, Iwan Rahardja, Rakibu Adam, Yelena Mukhina, Nahom Gebretnisae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko, Viviana Ceballos, Wilders Paul, Alexander Alvarenga, Dembo Sannoh, and Jesus Angel Juarez Pantoja are detained. Respondent Doll is the immediate, physical custodian of these Petitioners. He is sued in his official capacity.
30. Respondent Craig A. Lowe is the Warden of the Pike County Correctional Facility in Lords Valley, Pennsylvania, where Petitioners Jesus De La
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Pena, Duc Viet Lam, Brisio Balderas-Dominguez, Marcos Javier Ortiz Matos, Armando Avecilla, Coswin Ricardo Murray, Edwin Luis Crisostomo Rodriguez, Eldon Bernard Briette, and Alger Francois are detained. Respondent Lowe is the immediate, physical custodian of these Petitioners. He is sued in his official capacity.
STATEMENT OF FACTS A. COVID-19 Poses A Grave and Elevated Risk of Harm, Including Serious
Illness or Death, to Persons Age 65 and Over and Those with Certain Medical Conditions. 31. COVID-19 is a disease caused by coronavirus that has reached pandemic status. According to the World Health Organization, as of April 3, more than 932,166 people have been diagnosed with COVID-19 in 25 countries or territories around the world and 46,764 have died as a result. Ex. 1, Apr. 3, 2020 Amon Decl. (Amon 1) at ¶ 5.2 The United States has the highest number of reported cases: 245,573 people have been diagnosed with the disease and 6,058 people have died thus far. Id. In Pennsylvania, there are at least 7,016 confirmed cases and 90 deaths. Id. The rates of infection are exponential, not linear, meaning that, for each person infected one day, the next day we should expect to see not one, but many more instances of infection. Id. Without effective public health interventions, CDC projections indicate about 200 million people in the United States could be infected
2 Petitioners rely on two declarations from Dr. Amon. Ex. 1 has been prepared for this lawsuit and is dated April 3. They also rely on Ex. 2, his March 24, 2020, declaration in Thakker.
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over the course of the pandemic, with as many as 1.5 million people dying from this infection. Ex. 3 (Golob) at ¶ 11.3 Outcomes from COVID-19 vary from asymptomatic infection to death. Individuals who are at low risk may experience mild symptoms, while high-risk individuals may suffer respiratory failure from the disease. Amon 1 at ¶ 6. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen will die. Golob at ¶ 4. In other words, more than one in every seven people in this high-risk group are likely to die, and an even higher percentage will suffer serious illness.
32. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. Id. at ¶ 9.
33. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. Id.
34. Emerging evidence also suggests that COVID-19 can trigger an overresponse of the immune system, further damaging tissues in a cytokine release
3 Dr. Golob’s declaration was prepared for Thakker v. Doll, but is still relevant to provide medical background about the virus.
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syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id.
35. Individuals aged 65 and older and those of any age with serious underlying medical conditions are at the highest risk of severe disease and death if they are infected with COVID-19. Amon 1 ¶ 9. According to the Centers for Disease Control and Prevention (CDC), these underlying conditions include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions “including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability[,]” and current or recent pregnancy. Id. at ¶ 8. The CDC also identifies individuals with a body mass index (BMI) greater than 40 to be at higher risk for severe illness. Id.
36. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected with the coronavirus. Id. at ¶ 6.
37. COVID-19 infects people who come into contact with respiratory droplets that contain the coronavirus. Id. at ¶ 33. Speech alone can produce these droplets. Id. at 34. Contact with particles that transmit the virus can occur at a
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distance of six feet. Id. at ¶ 33. It is also possible that an individual can become infected by touching a surface with the virus and then touching their mouths. Thus, the only known means of minimizing the risk of infection are social distancing and increased sanitization. Id. at ¶ 35.
38. Increasingly, research shows that social distancing is the primary means of risk mitigation. Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic. The CDC recommends a social distance of at least 6 feet to minimize the risk of spread. Id. at ¶¶ 33. 34; Golob at ¶ 10.
39. In response to this research, countries around the world have sought to make social distancing into public policy. In the United States, fifty states, seven territories, and the District of Columbia have all taken formal executive action to contain the outbreak. Id. at ¶ 36. These measures include stay at home orders that now cover at least 97 million people across the country. Id. On April 1, Governor Wolf extended the pre-existing county-by-county stay-at-home orders to cover the entire state of Pennsylvania. Id. The idea behind these actions is that, by “flattening the curve,” those most vulnerable will be least likely to become infected and, if they do, the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them. Id. at ¶ 26.
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B. Conditions in Pennsylvania’s Immigration Detention Facilities Increase the Risk of COVID-19 Infection. 40. The conditions in Pennsylvania’s immigrant detention facilities
contravene all medical and public health directives for risk mitigation. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Nor is such social distancing a possible solution, given the crowding of the facilities and the limitations on space.
41. At York, individuals are crowded into dorms of around 60 people. Juarez Pantoja at ¶ 8. They sleep in bunk beds only about 2 feet apart. Muhammed at ¶ 10. Ventilation in the facility is poor. Paul at ¶ 12. Plaintiffs are forced to move within these spaces without attention to necessary social distancing. Id. at ¶ 10.
42. In Pike, individuals within blocks are forced into small cells that they share with two other people, with two people sleeping on a bunk bed and one person in a bed just two or three feet away. Avecilla at ¶ 8. A toilet and sink that the detained individuals must share further crowds the cell, making it impossible to maintain 6 feet of distance. Id.
43. Other aspects of detention also preclude the CDC-recommended social distancing, and increase transmission opportunities. Shared use of common facilities generates further opportunities for infection. Toilets, sinks, and showers are shared, without disinfection between use. Amon 1 ¶ 41. Mass food preparation and distribution across the facility presents a further locus for virus transmission. Id.
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44. At York, detained individuals eat at communal tables for four so small that the edges of the trays touch the end of the table. Juarez Pantoja at ¶ 10. Social distancing is impossible in this small space.
45. Nor is there adequate space in bathrooms: there are four toilets and two urinals and six showers for a unit of nearly sixty. Id. at ¶ 8. Because sanitization supplies are not provided, detained individuals cannot maintain proper hygiene. Detainees are given only one bar of soap a week, which they must bring with them to the bathroom. Alvarenga at ¶ 15. They are not provided hand sanitizer. Id.; Rahardja at ¶ 12. They also must clean the bathrooms with a cleaning material that likely has no alcohol or bleach. Alvarenga at ¶ 15. When one individual asked for disinfectant, he was denied. Hope at ¶ 12. Detainees have limited access to running water, and must use bathroom sinks that are for hand washing and brushing teeth to access water for food they prepare in their dorms. Ruiz at ¶ 5.
46. Additional common surfaces, including phones and tablets, create potential sources of infection. Because there are a limited number of tablets and phones, the only means to communicate with loved ones and counsel is to share these devices. Hope at ¶ 10. Yet the facilities limit access to proper disinfecting products to clean them between use. Id. at ¶ 12. Detainees resort to using toilet paper and towels to try to keep themselves safe from infectious spread. Alvarenga at ¶ 15.
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47. At Pike, an entire unit of around 50 people shares a set of four showers, with an average of 12 people sharing each shower when all showers are functional. Avecilla at ¶ 11. Ventilation in the facility is poor. Id. at ¶ 13; Briette at ¶ 14. As at York, phones and tablets at Pike are shared among many detained individuals within each block, yet the supplies allotted to clean are diluted and insufficient. Briette at ¶ 15.
48. While Pike has instituted a lockdown in response to COVID-19, it is still insufficient to protect detainees. Groups of 12 men are let out of their cells together for a short time every day and clamber to use the shared tablets and showers. De La Pena at ¶ 10. Detainees are still working, including Plaintiff De La Pena, who works nights cleaning the floors of the facility. Id.
49. These crowded conditions, in both sleeping and social areas prohibit effective social distancing necessary to protect against transmission. Shared objects (bathrooms, sinks, etc.) maximize the likelihood that COVID-19 will spread rapidly across the facilities. Amon 1 at ¶ 48. These conditions create serious risk that vulnerable detainees will become infected.
50. Similar viral spread has already occurred at other detention facilities. In New York City, for example, where the testing began earlier than in Pennsylvania, jails have become an epicenter of infectious spread. As of Tuesday, March 31, 141 staff and 180 individuals in custody had tested positive at Riker’s Island and city
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jails in New York City. The Legal Aid Society in New York recently reported that the infection rate for COVID-19 at local jails is more than seven times higher than the rate citywide and 87 times higher than the country at large. Amon 1 ¶ 51.
51. There is growing evidence of contagion and inadequate medical care within the facilities where Plaintiffs are detained. Even before quarantines, plaintiffs from each facility reported having issues receiving adequate medical care. See Juarez Pantoja at ¶5. Rahardja at ¶ 8; Briette at ¶ 10.
52. Since COVID-19 has become a known public health threat, the facilities have failed to take precautions. Not only are detained individuals not provided with masks to protect themselves, but the workers who come in and out of units to serve food also do not wear masks. Alvarenga at ¶17; Matos at ¶¶ 12-13. Staff also move between units without masks. Juarez Pantoja at ¶ 11. Even medical workers sometimes do not wear masks. Avecilla at ¶ 14. These multiple points of contact provide multiple potential vectors for infection. Indeed, Plaintiffs are concerned that guards may be infected and may be spreading the illness through the facility. Avecilla at ¶17.
53. Even where measures are taken, they are insufficient to prevent spread across the facility. For example, at York, all individuals housed in a single unit are put on quarantine within the same dorms in which they are unable to practice social distancing. Mukhina at ¶ 11; Paul at ¶ 10. Because no one is tested to determine who
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is actually infected and who is not, this kind of quarantine facilitates transmission to non-infected individuals within the unit. Paul at ¶ 12; Alvarenga at ¶ 19; see also Amon 1 ¶ 61. In one instance, an individual was removed, but his bunk was not cleaned and his bunk mate continues to sleep in this potentially contaminated space. Rahardja at ¶ 10. Temperature checks are infrequent, with one individual reporting a single test about a week and a half ago. Juarez Pantoja at ¶ 11; see also Alvarenga at ¶ 20. In the women’s unit, multiple individuals under quarantine have reported symptoms, but those who are not are left without protection. Muhkina at ¶ 11. The women’s unit has also been unable to access utilities like the laundry, which makes the space less hygienic. Id.
54. Access to medical treatment and medication has also been delayed or inconsistent at York, which is especially troubling for detainees who take medications that should be given at evenly spaced intervals. Paul at ¶¶ 11, 13. Detainees’ quarantined blocks have also had their immigration hearings or custody reviews rescheduled, which may lengthen their detention. Mukhina at ¶ 12; Paul at ¶ 13; Ceballos at ¶ 9.
55. At Pike, two individuals reported COVID-19 symptoms, but were being left in the cell without care, risking their health and the health of others still in the unit. Avecilla at ¶ 15. Pike is also keeping quarantined detainees in the same block as other detainees, including the working block, which houses 67 men. De La
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Pena at ¶ 14. Individuals in cells with others who were removed after presenting symptoms of COVID-19 report that the facility did not even test them. Crisostomo Rodriguez at ¶ 8. Detainees housed in the same block as those in quarantine are not provided masks. De La Pena ¶ 13. As at York, cohorting in this way could mean disease transmission will be facilitated rather than prevented. Amon 1 ¶ 61.
56. While some individuals have reported temperature checks, no plaintiffs have observed or heard word of medical staff administering tests to anyone reporting symptoms. De La Pena ¶13. In fact, Pike denied a Petitioner’s request to be tested after he his cellmates exhibited symptoms and were removed from his cell. Crisotomo Rodriguez at ¶ 8. Because of asymptomatic and pre-symptomatic transmission, temperature checks alone are insufficient to identify infected individuals who may be infected and infecting others. Amon 1 ¶ 50(a).
57. The failure to perform tests of staff who have ongoing community contacts presents a daily risk of introduction of the virus into the detention facility. Id. at ¶ 50(d). The entire state of Pennsylvania is reported to have “widespread” community transmission, and therefore all staff are potential vectors of the virus. Id. at ¶ 50(b). The possibility of asymptomatic transmission means that monitoring staff for fever is also inadequate for identifying all who may be infected and preventing transmission. Id. at ¶ 50(a). This is also true because not all individuals infected with COVID-19 report fever in early stages of infection. Ex. 2 (Amon Decl.) at ¶ 42.
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58. A lack of proven cases of COVID-19 where there is little to no testing is functionally meaningless for determining if there is a risk for COVID-19 transmission in a community or institution. Golob at ¶ 7. In other jurisdictions where testing has been made available to correctional officers who enter and leave facilities regularly, the rates of infection are high. Amon 1 at ¶¶ 51, 52.
59. At Pike, one inmate has tested positive for COVID-19 and is currently hospitalized, and three staff members, and one contract employee have tested positive for COVID-19.4 Many others have witnessed cell mates and people in their unit exhibiting symptoms, sometimes without any attention from the correctional officers. Avecilla at ¶¶ 15, 16. York’s quarantine suggests that the virus may have infected that facility as well.
60. Once introduced, it will be impossible to stop the spread of the virus within the facility, where social distancing measures are impossible. CDC guidance specifically recommends implementing social distancing strategies to increase the physical space between incarcerated and detained persons, “ideally 6 feet between all individuals, regardless of the presence of symptoms,” but Respondents continue to hold Plaintiffs in conditions where they sleep an arm’s reach away from each other
4 Coronavirus COVID-19 Updates from the Pike County Commissioners, April 2, 2020 Update, https://news.pikepa.org/post/2020/03/09/COVID-19-Update (last visited April 3, 2020)
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in a room full of people with whom they share bathrooms and eating spaces. Weithers at ¶ 12; Alvarenga at ¶ 13; Avecilla at ¶ 8. see also Amon 1 at ¶¶ 42.
61. Even were the Respondents to implement the specific ICE guidance for cohorting stringently across the facilities—which they have not done—these actions will not prevent the introduction of the virus and its spread within the facility because of the potential for asymptomatic transmission from facility staff or other individuals in ICE custody. Id. at ¶¶ 61, 62. Moreover, the CDC guidance makes clear that cohorting must separate those suspected of having the virus from those who are not, a determination that can only be made with widespread testing. Id. at ¶¶ 59, 61. Yet Respondents fail to follow this protocol. There is no evidence that Respondents are conducting widespread testing. Without knowing who is infected, cohorts threaten to facilitate transmission. Amon 1 at ¶ 61. The size of the cohort that Respondents used at the Pike facility—a block of 48 men—threatens to expose many individuals to the virus. Avecilla at ¶¶ 8, 15, 16; Crisostomo Rodriguez at ¶¶ 10; 11; see also De La Pena at ¶ 9 (describing how his block has 67 men). York has a similar practice, “cohorting” the entire block, which is about 60 people. Alvarenga at ¶ 19; Mukhina at ¶ 11. Given that York’s housing is dormitory style and open, this practice puts the entire block is at risk of exposure.
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C. Continued ICE Detention is Unsafe for Those Most Vulnerable to COVID-19. 62. Without a vaccine or cure for COVID-19, mitigating the risk of
contracting virus is the only known way to protect those who are most vulnerable to serious harm from infection. Golob at ¶ 10; Amon 1 at ¶¶ 6, 35.
63. Because the risk of infection is at its zenith in detention centers where social distancing measures are impossible to implement, where people share common spaces that are not regularly sanitized, and where individuals are regularly exposed to potential vectors of infection, public health experts with experience in detention and correctional settings have recommended release of vulnerable individuals from custody. Golob at ¶ 14; Amon 1 at ¶¶ 70, 73.
64. High risk individuals who become infected will not receive adequate treatment. Immigration detention facilities lack adequate medical care infrastructure to address the strain of an outbreak. Amon 1 at ¶¶ 54, 64, 65. As a result, detained individuals who are age 65 and over or are any age with medical conditions that put them at high risk of illness if infected by COVID-19 are at grave risk of severe illness and death and should be released.
65. If they are not released before the virus spreads through the prison, ill detainees will likely be unable to access necessary medical care, including positive pressure ventilation and, in extreme cases, extracorporeal mechanical oxygenation. See Golob at ¶ 8. This is because an outbreak among detainees and corrections staff
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will strain the limited medical infrastructure in the rural counties in which these detention facilities are located. Once infection spreads throughout the detention center, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will die. Amon 1 at ¶ 65. Thus, high risk individuals should be released from detention centers before it is too late.
D. Plaintiffs Must Be Released from ICE Custody Because They Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19. 66. Plaintiffs in this case are all individuals who are especially vulnerable
to serious illness and death if they are infected with COVID-19, but ICE nonetheless continues to detain at York County Prison and Pike County Correctional Facility, while they await the adjudication of their immigration cases.
67. Plaintiff Aaron Hope is a 32-year-old male native of Trinidad. Hope at ¶ 1. He is eligible to adjust his status through his U.S. citizen wife. Id. at ¶ 2. One brother is also a citizen and his other brother and mother are legal permanent residents. Id. He has been detained at the York County Prison since September 15, 2019. Id. at ¶ 3.
68. Mr. Hope has suffered from asthma since childhood, was hospitalized with pneumonia in 2012, was diagnosed with sleep apnea in 2013, and was
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diagnosed with high blood pressure in 2017. Id. at ¶¶ 6-9 His underlying health conditions place him at high risk of severe illness or death if he contracts COVID19. Mr. Hope’s serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 11.
69. On March 27, 2019, Mr. Hope joined in a hunger strike at York County Prison to protest the unhygienic conditions and lack of appropriate precautions to prevent the spread of COVID-19. Id. at ¶¶ 10-13. The next day, March 28, correctional officers told Mr. Hope that they believed he was a leader of the strike and therefore was being put into segregation. Id. at ¶ 14. In the process of being moved to segregation, unidentified officers severely assaulted him, stripped him naked, and left him naked, badly bruised and handcuffed on the floor of the segregation cell. Id. at ¶¶ 12-19. He was denied repeated requests for medical treatment until Tuesday, April 1, when the prison finally transported him to a local hospital emergency room. Id.
70. Plaintiff Iwan Rahardja is a 51-year-old a citizen of Indonesia who has lived in the U.S. for nearly 20 years. Rahardja ¶ 1. He is married to a U.S. citizen and has two daughters, who are legal permanent residents. Id. at ¶ 3. He was granted asylum, but the finding was overturned on appeal. Id. at ¶ 2. He has been attempting to adjust his status based on his marriage to a U.S. citizen wife. Mr. Rahardja has
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been detained by ICE at the York County Prison since February 27, 2020. Id. at ¶ 6. He has no criminal record.
71. Mr. Rahardja suffers from diabetes and hypertension, for which he has been prescribed medications that he continues to take while in detention. Id. at ¶¶ 4. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 12.
72. Plaintiff Jesus De La Pena is a 37-year-old man from Mexico who has lived in this country since age 6. De La Pena at ¶ 1. He is married and has four children, ranging in age from 5 to 18. He has been detained for a year by ICE at Pike County Correctional Center. Id. at ¶ 3. He was granted non-lawful permanent resident cancellation of removal in October 2019, but remains detained pending ICE’s appeal. Id.
73. Mr. De La Pena suffers from severe asthma and hypertension. Id. at ¶ 5. He is also over-weight, i.e., 5’ 7” tall and 290 pounds. Id. He is prescribed about 12 pills per day. Id. at ¶ 7. Several months ago Pike took him to the hospital with bad chest pains and an abnormal EKG. Id. at ¶ 6. His immigration lawyer recently asked ICE to release him due to health issues, but on March 31 ICE officials refused. Id. at ¶ 8. His medical conditions and his obesity place him at high risk for severe disease and death if he contracts COVID-19. Amon 1 at ¶ 13.
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74. Plaintiff Rakibu Adam is a 34-year-old man from Ghana who has lived in the United States since 2014. Adam ¶ 1. He is married with two U.S. citizen children (ages 2 and 5). He recently had his merits hearing and is awaiting a decision in his claim for asylum. Mr. Adam has been detained by ICE at York County Prison since October 2019. Id. at ¶ 3. ICE picked him up after his first court hearing for retail theft. Id. at ¶ 4.
75. Mr. Adam suffers from asthma and high blood pressure. Id. at ¶ 6. He takes daily medication for his high blood pressure and has recently had trouble breathing. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 14.
76. Plaintiff Duc Viet Lam is a 50-year-old man from Vietnam who has lived in the U.S. for 13 years. Viet Lam at ¶¶ 1. He is married to a lawful permanent resident and has filed an 1-130 petition to adjust his status, thereby staying his deportation order. Id. at ¶ 2.
77. Mr. Viet Lam has been detained by ICE at the Pike County Correctional Center since January 2020. Id. at ¶ 3. ICE picked him up after he received probation for a disorderly conduct summary offense, for which he received probation. Id. at ¶ 2. That is his only offense. Id.
78. Mr. Viet Lam suffers from diabetes and high blood pressure, for which he receives medications. Id. at ¶ 4. Several years ago he was hospitalized for three
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days because of the high blood pressure. Id. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 15.
79. Plaintiff Yelena Mukhina is a 35-year-old woman from Ukraine who has been in this country for 14 years. Mukhina at ¶ 1. She is a lawful permanent resident and has a 10-year-old U.S. citizen daughter. Id. at ¶ 2. Her fiancé is also a U.S. citizen. Id. Ms. Mukhina has been detained by ICE at York County Prison since February 2020. Id. at ¶ 3. She is seeking Lawful Permanent Resident Cancellation of Removal. Because her block is on quarantine, her immigration hearing was rescheduled from April 1, 2020 to May 12, 2020. Id. at ¶ 13.
80. Ms. Mukhina has suffered from asthma since 2010. Id. at ¶ 5. She is unable to sleep because of how bad her breathing problems are. Id. at ¶ 9. She has hepatitis C, suffers from seizures, has suffered from blood clots in her heart, and has a heart murmur. Id. at ¶ 7-9. Her multiple health issues place her at high risk of severe illness or death if she contracts COVID-19. Amon 1 at ¶ 16.
81. Plaintiff Nahom Gebretnisae is a 28-year-old man from the Eritrea who has lived in the U.S. for more than 20 years. Gebretnisae at ¶¶ 1, 2. His entire family – elderly parents, ages 79 and 91 and four older siblings – arrived in 1998 and now are U.S. citizens. Id. at ¶ 2. He has been detained by ICE since February 18, 2020, at York County Prison. Id. at ¶ 3.
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82. Mr. Gebretnisae has for the past 13 years suffered from Crohn’s Disease and related arthritis and severe nerve and general pain. Id. at ¶ 4. He is prescribed many medications. Id. at ¶¶ 5-11. Mr. Gebretnisae cannot alleviate his symptoms with the limited food choices available in the prison, which has caused him to suffer severe cramps, diarrhea, arthritis and pain. Id. at ¶¶ 9-10. Because he taking immunosuppressants, he may be immunocompromised and at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 17.
83. Plaintiff Ismail Muhammed is a 69-year-old man from Pakistan who has been in the U.S. since 2002. Ismael at ¶¶ 1st un-numbered and 1. Mr. Ismael has been held at the York County Prison since December 19, 2019. Id. at ¶ 1.
84. Mr. Ismael has recently lost about 25 pounds, suffered from asthmatype attacks, and is pre-diabetic. Id. at ¶¶ 3-8. In recent months he has grown increasingly frail. Id. His advanced age puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 18. His prediabetes and breathing difficulties could also put him at increased risk and complicate treatment. Id.
85. Plaintiff Glenn Weithers is a 49-year-old man from Guyana who has lived in the United States for more than 32 years as a lawful permanent resident. Weithers at ¶ 1. His brother, sister, children, and grandchildren are all U.S. citizens. Id. at ¶ 2. Mr. Weithers has been detained by ICE at York County Prison since January 2019. Id. ¶ 4. He currently has a motion to reopen pending. Id.
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86. Mr. Weithers has emphysema and chronic obstructive pulmonary disease. Id. at ¶ 7. He has had difficulty receiving adequate treatment and has recently been having breathing issues at night. Id. at ¶ 9. His lung-related illness places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 19.
87. Plaintiff Konstantin Bugarenko is a 49-year-old man from Ukraine. Bugarenko at ¶ 1. He has lived in the United States for nearly 24 years as a lawful permanent resident. Id. He is married to a U.S. citizen and they have five U.S. citizen children together. Id. at ¶ 2. Mr. Bugarenko has been detained by ICE at York County Prison since October 2017. Id. at ¶ 5. He is currently seeking a rehearing in his case before the U.S. Third Circuit Court of Appeals. Id. at ¶ 4.
88. Mr. Bugarenko suffers from prediabetes, high blood pressure, and diverticulitis. Id. at ¶ 5. He also suffers re-occurring and debilitating pain in his feet that renders him temporarily unable to walk. Id. at ¶ 5. His medical conditions could put him at a heightened risk of complications if he contracts COVID-19. Amon 1 at ¶ 20.
89. Plaintiff Brisio Balderas-Dominguez is a 47-year-old man from Mexico who came to this country in 1991 after cartel members murdered his father, a judge. Balderas-Dominguez at ¶¶ 1, 3. He is married to a U.S. citizen woman and has four U.S. citizen children. Id. at ¶ 4. Mr. Balderas-Dominguez has been detained
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by ICE for nearly three years at the Pike County Correctional Center. Id. at ¶ 5. His application for relief under the Convention Against Torture (“CAT”) is pending before the U.S. Third Circuit Court of Appeals, which issued an order staying his deportation. Id. at ¶ 6.
90. Mr. Balderas-Dominguez suffers from diabetes, atrial fibrillation, and high blood pressure, for which he takes many medications. Id. at ¶¶ 8, 9. His medical conditions place him at high risk of severe illness or death if he contracts COVID19. Amon 1 at ¶ 21.
91. Plaintiff Viviana Ceballos is a 56-year-old woman from Argentina who has lived in the United States for over 29 years. Ceballos ¶ 3. She became a lawful permanent resident in 1994. Id. She has been detained by ICE at York County Prison since March 2019. Id. at ¶ 7.
92. Ms. Cabellos is awaiting a decision from the Board of Immigration Appeals to reopen her case on the grounds that she is now eligible for Cancellation of Removal after vacating a conviction for stolen property under the Post Conviction Relief Act (PCRA). Id. at ¶¶ 5, 6. DHS has indicated they to not oppose her Motion to Reopen. Id. at 6.
93. On April 2, 2020, Ms. Cabellos’s attorney received an email from an ICE officer informing her that Ms. Cabello’s parole redetermination hearing was postponed because she is in a cohorted dorm. Id. at ¶ 7.
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94. Ms. Cabellos has high blood pressure, for which she receives medication. Id. at ¶ 12. Her high blood pressure and age likely place her at a heightened risk of complications from s COVID-19. Amon 1 at ¶ 22.
95. Plaintiff Wilders Paul is a 32-year-old man from Haiti. Wilders at ¶ 1. He has lived in the United States since he was three years old. Id. at ¶ 1. He is married to a U.S. citizen and they have two children together—a son (age 13) and daughter (age 7). Id. He has been detained by ICE since December 28, 2019. Id. at ¶ 3. Mr. Paul is seeking adjustment of status through his U.S. citizen wife before EOIR. Id. His immigration lawyer recently asked ICE to release him due to health issues, but on March 31 they refused. Id. at ¶ 8.
96. As a result of a traumatic brain injury, Mr. Paul suffers from seizures and migraines. Id. at ¶¶ 6, 7. He takes the anti-seizure medication Keppra twice a day. Id. at ¶ 7. Prior to his detention, he also took migraine medication, but York is not providing him with this medication. Id. at ¶¶ 6, 7. His seizures likely put him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 23.
97. Plaintiff Marco Javier Ortiz Matos is a 32-year-old man from the Dominican Republic who has lived in this country for nearly 20 years. Ortiz Matos at ¶¶ 1, 2. He has been detained by ICE since November 2019 at Pike County Correctional Center. Id. at ¶ 3.
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98. Mr. Ortiz Matos suffers from diabetes, for which he takes two medications. Id. at ¶¶ 4-7. He also has stomach ulcers. Id. His diabetes places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 24.
99. Plaintiff Alexander Alvaregna is a 46-year-old man from El Salvador. Alvaregna at 1st unnumbered ¶ and ¶ 1. He has lived in the U.S. since 1984, when he was age 9. Id. at ¶ 1. All of his siblings live in the U.S. Id. He has three children – age 13, 25 and 29 – all of whom are U.S. citizens. Id. at ¶¶ 1, 4. He is very close to all of the aforementioned family members. Id. at ¶ 4.
100. Mr. Alvaregna was granted Temporary Protected Status in 1991, which then adjusted to Lawful Permanent Resident status in 1993. Id. at ¶ 2. Mr. Alvaregna has been detained at York County Prison since March 2, 2019. Id. at ¶ 5. An appeal of his denial of relief under the Convention Against Torture is pending before the BIA. Id. at ¶ 6.
101. Mr. Alvaregna suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability due to a 2019 accident. Id. at ¶¶ 7-11. He is prescribed and takes medications for all of the foregoing medical conditions. Id. His serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 25.
102. Plaintiff Armando Avecilla is a 53-year-old man from Panama. Avecilla at ¶ 1. He fled Panama after he was shot multiple times in the head, which
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put him into a coma for a month, blinded one eye, and injured his jaw so badly he has difficulty eating. Id. at ¶ 7. Mr. Avecila has been detained at Pike County Correctional Center since November 2019. Id. at ¶ 4. His appeal of his denial of asylum by the immigration court will be filed shortly by his immigration lawyer with the BIA. Id. at ¶ 2.
103. Mr. Avecilla has suffered from diabetes since 2010, for which he continues to receive daily medication. Id. at ¶ 6. He also suffers from partial disability caused by the gunshot wounds to his head. Id. at ¶ 7. His diabetes puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 26.
104. Plaintiff Coswin Ricardo Murray is a 45-year-old man from Barbados who has lived in this country for 33 years. Murray at ¶¶ 1-2. He is married and has four children, between the ages of 11 and 22, all of whom are U.S. citizens. Id. at ¶ 2. His wife is suffering from cancer—she has already had one kidney removed and the disease has spread to her bones—and he desperately wants to be with her. Id. at ¶¶ 2, 5, 6. ICE has detained Mr. Murray at Pike County Correctional Center since August 2019. Id. at ¶¶ 4, 6. Mr. Murray is in the process of trying to adjust his status based on his marriage to a U.S. citizen. Id. at ¶ 3.
105. Mr. Murray suffers from asthma, for which Pike refuses to give him an inhaler. Id. at ¶¶ 7-8. Mr. Murray’s lung-related illness places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 27.
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106. Plaintiff Edwin Luis Crisostomo Rodriguez is a 31-year-old man from the Dominican Republic who has lived in the U.S. since 2016. Rodriguez at ¶¶ 1, 3. He is married to a lawful permanent resident, and has two step daughters. Id. at ¶ 4. Mr. Cristomo Rodriguez has been detained since February 20, 2020, at the Pike County Correctional Center. Id. at ¶ 3.
107. Mr. Crisostomo Rodriguez has suffered from asthma since childhood, id. at ¶ 7, which places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 28.
108. Plaintiff Eldon Bernard Briette is a 46-year-old man from Turks and Caicos who has lived in the U.S. for 35 years, since age 12. Briette at ¶¶ 1, 4. He is engaged to a U.S. citizen and has two U.S. citizen children. Id. at ¶ 4. Mr. Briette has been detained at the Pike County Correctional Center by ICE since November 12, 2019. Id. at ¶ 5. His case seeking withholding of removal is pending before the BIA. Id. at ¶ 2.
109. Mr. Briette suffers from diabetes, high blood pressure, high cholesterol, depression and anxiety. Id. at ¶¶ 6-9. He takes medications for all of these conditions, probably 8-9 pills a day, including now at Pike. Id. For the past two months, he has coughed heavily and fever-related symptoms. Id. at ¶ 10. His medical condition likely put him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 29.
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110. Plaintiff Dembo Sannoh is a 41-year-old man from Sierra Leone. Sannoh at ¶ 1. He fled Sierra Leone after his parents were killed during the civil war and arrived to the United States in 2002. Id. at ¶ 2. He was granted asylum and in 2013 became a lawful permanent resident. Id. at ¶ 3. Mr. Sannoh has been detained by ICE at York County Prison since August 2019. His case is currently before the Board of Immigration Appeals (BIA). Id. at ¶ 3.
111. He has diabetes, hepatitis C, and an unidentified heart condition. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 30.
112. Plaintiff Jesus Angel Juarez Pantoja is a 36-year-old man from Mexico who has lived in the U.S. since age 6. Juarez Pantoja at ¶ 1. He is married and has three children, ages 8, 10 and 19, as well as a 3-month-old grandson. Id. One of his daughters suffers from depression, which has been exacerbated by his detention. Id. at 16. Mr. Juarez Pantoja has been detained by ICE at York County Prison since November 2019. Id. at ¶ 2. His immigration appeal is pending before the BIA. Id. at ¶ 14.
113. He suffers from asthma, sleep apnea and high blood pressure. Id. at ¶¶ 3-6. He is prescribed an inhaler for the asthma, but York does not allow him to keep it; rather he needs to let a correctional officer know he needs it and they will bring him to the medical unit to use the inhaler. Id. at ¶ 3. York recently placed him in
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disciplinary status for suspected organizing activity around a hunger strike to protest conditions and treatment involving COVID-19, id. at ¶ 7, but being alone in a cell raises increased health concerns because he may not be able to summon help in the event he experiences asthma-related breathing problems, id. at ¶ 15. His asthma puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 31. His other health issues, including high blood pressure and obesity, also put him at risk for possible complications in his treatment should be contract COVID-19. Id.
114. Plaintiff Duckens Max Adler Francois 45-year-old man from Haiti who has lived in the United States for 30 years. Francois at ¶ 1. Mr. Francois has been detained by ICE at Pike County Correctional Facility for six months. Id. at ¶ 2. He is seeking Lawful Permanent Resident Cancellation of Removal and is awaiting his merits hearing. Hubbard at ¶ 4.
115. Mr. Francois has hypertension, pain when he urinates, and swollen feet. Francois at ¶ 6. He is awaiting a medical appointment for further testing and diagnosis. Id. He also has an intellectual disability and is obese. Hubbard at ¶ 5. He also has latent tuberculosis. Id. His medical conditions likely puts him at a high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 32.
E. ICE Continues to Expose Plaintiffs to Dangerous Conditions of Confinement Despite Being Advised of These Dangers
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116. Public health measures across the country, including in Pennsylvania, demonstrate the widespread recognition that the only clinically recommended course of action to protect individuals who have medical conditions that make them vulnerable to serious illness or death from COVID-19 is to practice social distancing and increased hygiene. Only these practices mitigate the risk of contracting this novel virus that has no cure. Golob at ¶ 10; Amon 1 at ¶¶ 6, 35.
117. CDC guidance for detention centers and prisons specifically recommends implementing social distancing strategies to increase the physical space between people, “ideally 6 feet between all individuals, regardless of the presence of symptoms.” Id. at ¶ 42.
118. None of the ICE facilities are following CDC guidance in relation to social distancing, putting all detainees, and especially those at high risk of severe disease and death, in jeopardy. Id. at ¶ 48. Plaintiffs are forced to sleep in crowded dorms that do not allow six feet of distance from each other, Juarez Pantoja at ¶ 8; Muhammed at ¶ 10,5 or are housed three to an eight-foot-by-
5 See also Thakker Dkt. 2-10 (Pratt Decl.) at ¶ 7; Thakker Dkt. 2-4 (Idowu Decl.) at ¶ 11; Thakker Dkt. 2-11 (Augustin Decl.) at ¶16.
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twelve-foot cell, with two people sharing a bunk bed, and with a shared toilet and sink between all three. Avecilla at ¶ 8.6 119. Nor will the policy of “cohorting” prevent the spread of the virus to Plaintiffs. Contrary to CDC recommendations to cohort individually, ICE cohorts many people together, between 30 to 50 to a room or triple celled at Pike and 60 to a room at York. Even if ICE is to implement this policy at the facilities, asymptomatic transmission will allow individuals to infect others before showing the signs that would trigger the cohorting measures, and will force non-infected individual into small cohorted spaces with infected individuals. Amon 1 at ¶ 61. 120. CDC guidance on correctional and detention facilities emphasizes that there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff and transfer of incarcerated/detained persons. Amon 1 at ¶ 66. ICE claims to be following CDC guidance at its facilities. Id. However, the ICE action plan only provides for verbal screening and temperature checks. But asymptomatic transmission of the virus means that monitoring fever of staff or detainees is inadequate for identifying all who may be infected and preventing transmission. Id. at ¶
6 See also Thakker Dkt. 2-3 (Thakker Decl.) at ¶ 11 40

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50(b). Given the shortage of COVID-19 testing in the United States, it is likely that detention facilities are and will continue to be unable to conduct aggressive, widespread testing to identify all positive cases of COVID-19. Id. at 50(d). 121. Respondents also have failed to implement their own alleged protocol for isolation. The protocol states: “ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19.” Id. at ¶ 60. Plaintiffs’ declarations make clear that these procedures are not being implemented. But even if they were, they would be insufficient to address infectious spread. Given the rate of spread in detention facilities, there will be many more than people with COVID-19 than there are isolation rooms. Id. Limited infrastructure will thus mean that ICE will not be able to comply with this protocol and will therefore expose noninfected individuals held in quarantine with infected individuals. 122. Respondents also expose Plaintiffs to unsanitary conditions that increase the risk of infection and spread. They must use common toilets and showers, Avecilla at ¶ 8, which individual detainees clean for a dollar a day. They have no control over their soap rations or access to other sanitization products. Alvarenga at ¶ 15.
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123. Respondents have been aware of the serious hygiene issues at their facilities, including York. Stakeholders sent a detailed letter to Ms. FloresLund and Warden Doll in July 2019 detailing various deficiencies in hygiene, sanitation and medical care, and thus these officials are or should have been aware of these serious problems at York County Prison. See Thakker Dkt. 219 (Ruiz Decl.) at ¶ 3. To date, York Country Prison has not implemented any changes. Id. at ¶ 12; Ruiz at ¶ 12.
124. On March 13, 2020, as infection rates began to increase in Pennsylvania at an alarming rate, the American Civil Liberties Foundation (ACLU) of Pennsylvania sent a letter to Defendant Flores-Lund, and other agency officials, alerting them to the high risk of COVID-19 infection in detention facilities and the dangerous health outcomes of an infection for vulnerable individuals. Thakker Dkt. 2-20.
125. Neither Ms. Flores-Lund nor any other agency official has responded to the letter.
126. CDC guidance recognizes that incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced. Amon 1 at ¶ 66. All of the risks are present here, where Plaintiffs cannot practice social distancing, share common spaces and touch common surfaces, and where new individuals and staff come into the facility each day.
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Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 44 of 57
127. Yet ICE continues to detain Plaintiffs, and many other medically vulnerable people, in contradiction of medical advice. Even if ICE has implemented the screening measures the agency claims to be implementing, which they have not, these measures are insufficient to prevent introduction of the virus into a setting where it will spread like wildfire.
128. Respondents do not have the capability to put out this fire with the scarcity of tests and the limited physical infrastructure in which they can neither isolate nor distance individuals from each other.
LEGAL FRAMEWORK A. Immigrant Detainees are Entitled to Constitutional Due Process Protections Against Exposure to Infectious Disease. 129. Immigrant detainees, even those with prior criminal convictions, are
civil detainees entitled to the same Fifth and Fourteenth Amendment due process protections as any other pretrial detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); E. D. v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019).7 130. Due process rights for civil detainees mean that they are “entitled to more considerate treatment and conditions of confinement than criminals
7 The Fifth Amendment requires the federal Respondent-Respondents to provide due process protections to Plaintiffs. The Fourteenth Amendment requires the state RespondentRespondents to provide the same due process.
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whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). 131. “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” Sharkey, 928 F.3d at 307 (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). Put differently, to assess whether a condition constitutes impermissible punishment, “[w]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232. Conditions must be assessed in their totality. Id. at 233. 132. The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it “fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” for those in custody. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189,
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199-200 (1989); see also Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999, 1008 (3d Cir. 1983) (explaining that conditions are cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” such as the “necessity” of “habitable shelter,” as measured under “contemporary standards of decency”). 133. Courts in this Circuit have repeatedly found such “unsanitary, unsafe, or otherwise inadequate conditions” sufficient to state a Due Process claim. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); see Grohs v. Lanigan, No. 16-7083, 2019 WL 150061, at *11 (D.N.J. Apr. 5, 2019) (allegations of exposure to “extreme heat combined with lack of potable water, as well as generally unsanitary conditions” sufficient to state a conditions-of-confinement claim under the Fourteenth Amendment). 134. Conditions that would violate the Eighth Amendment are more than enough to also violate a civil detainee’s due process rights. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).
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135. To prevail on a claim that conditions of confinement violate the Eighth Amendment, Petitioners must meet two requirements: (1) the deprivation alleged must be, objectively, “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the detainee’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
136. The Supreme Court has recognized that it violates the Eighth Amendment to crowd prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)); see also Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681, at *13 (M.D. Pa. May 11, 2017), report and recommendation adopted, 2007 WL 9718672 (M.D. Pa. June 1, 2017).
137. Petitioners can establish deliberate indifference based on circumstantial evidence that the risk is obvious. The obviousness of the risk the Petitioners face, by itself, is enough to allow a factfinder to conclude that Respondents know of the risk. Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Put another way, deliberate indifference may be shown through circumstantial
46

Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 48 of 57
evidence. Farmer, 511 U.S. at 842 (explaining that “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”). 138. Due process rights may be violated even before a detainee is exposed to disease. Because the Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety[,]’” Helling v. McKinney, 509 U.S. at 33. (quoting DeShaney, 489 U.S. at 200), “[i]t would be odd to deny 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[.]” Id. B.Respondents Are Violating Petitioner’s Constitutional Due Process Rights. 139. The conditions at the ICE Facilities described above, supra ¶¶ 40-61, are sufficient to demonstrate that Petitioners’ constitutional due process rights are being violated. Keeping at-risk Petitioners detained in such close proximity to one another and without the sanitation necessary to combat the spread of the virus serves no legitimate purpose. Nor is detention under these circumstances rationally related to the enforcement of immigration laws. 140. Petitioners’ due process rights are also being violated because their conditions of confinement place them at serious risk of being infected with
47

Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 49 of 57
COVID-19 and Respondents are being deliberately indifferent to this critical safety concern. 141. There is no question that COVID-19 poses a serious risk to Petitioners. COVID-19 is highly contagious, and can cause severe illness and death. See supra., Statement of Facts § A. Petitioners are at a heightened risk because of their age and/or underlying health conditions. See supra ¶¶ 66, 68, 71, 73, 75, 78, 80, 82, 84, 86, 88, 90, 94, 96, 98, 101, 103, 105, 107, 109, 111, 113, 115. 142. Respondents are aware of and have completely disregarded the serious risk that COVID-19 poses to Petitioners. See supra ¶ 124 (ACLU March 13, 2020 letter). 143. The risk that COVID-19 poses to Petitioners is also obvious, including to Respondents. Medical experts for the Department of Homeland Security have also identified the risk of COVID-19 spreading to ICE detention centers.8 John Sandweg, a former acting director of ICE, has written publicly about the need to release nonviolent detainees because ICE detention centers “are extremely susceptible to outbreaks of infectious diseases” and
8 See March 19, 2020 letter from Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH to House and Senate Committees on Homeland Security, available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020-Letter-to-Congress.pdf.
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Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 50 of 57
“preventing the virus from being introduced into these facilities is impossible.”9 Prisons and jails around the country are already releasing nonviolent detainees because the risk of contagion is overwhelming.10 144. The circumstances of this case make clear that release is the only means to ensure compliance with Petitioners’ due process rights. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with underlying medical conditions. See supra ¶¶ 38, 63, 116. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible. C. ICE Regularly Uses Its Authority To Release People Detained In
Custody Because They Suffer Serious Medical Conditions. 145. ICE has a longstanding practice of prosecutorial discretion, which
demonstrates that the agency understands that its authority extends to— and

9 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent

Detainees.”

The Atlantic (March 22, 2020), available at

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/.

10 See Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020)

(ordering release of most county jail detainees), available at

https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF; United States v. Stephens,

No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (concluding that

the “unprecedented and extraordinarily dangerous nature of the COVID-19

pandemic” constituted compelling circumstances to adjust a Respondent’s bail

conditions and release him, even though there was “not yet a known outbreak among

the jail and prison populations” when the order was issued).

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includes— humanitarian releases from custody. The agency has routinely exercised its authority to release particularly vulnerable detainees. As former Deputy Assistant Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-Strait explains, “ICE has exercised and still exercises discretion for purposes of releasing individuals with serious medical conditions from detention.” See Thakker Dkt. 2-17 (Strait Decl.) at ¶ 3. 146. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A government-contracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings. See Thakker Dkt. 2-17 (Lorenzen-Strait Decl.) ¶ 15. 147. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating
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against detention. See Thakker Dkt. 2-17 (Strait Decl.) at ¶¶ 10-14. For example, under 8 C.F.R. § 212.5(b)(1), ICE has routinely exercised its discretion to release particularly vulnerable detainees. Id. at 4-11. 148. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention. See Thakker Dkt. 2-17 (Strait Decl.) at ¶ 11. 149. While ICE officers may be exercising discretion less frequently in recent years, the statutory and regulatory authority underlying the use of prosecutorial discretion in custodial determinations remains in effect. See Thakker Dkt. 2-17 (Straight Decl.) at ¶ 13. 150. Consistent with the Due Process clause of the Fifth Amendment to the U.S. Constitution, ICE must release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has the authority to release immigrants from custody and has exercised this authority in the past indicates that the remedy Petitioners request is neither unprecedented nor unmanageable for the agency. D. This Court Has Authority to Order Petitioners’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here. 151. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional
51

Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 53 of 57
mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). 152. This authority extends to “placing limits on a prison’s population” when necessary to ensure compliance with the Constitution. Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap). 153. The circumstances of this case make clear that release is the only means to ensure compliance with the Fifth Amendment’s prohibition against punitive detention. Petitioners’ medical conditions put them at grave risk of severe illness or death if they contract COVID-19. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with pre-existing medical conditions. Yet Respondents are detaining vulnerable Petitioners under conditions where they are forced into close contact with many other detainees and officers. By continuing detention in these circumstances, Respondents are subjecting Petitioners to unreasonable harm. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
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CLAIM FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions
of Confinement) 154. The forgoing allegations are re-alleged and incorporated herein. 155. The Fifth Amendment of the Constitution guarantees that civil
detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it fails to satisfy its affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety for those in custody. The federal government also violates substantive due process when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment. 156. By detaining Petitioners in the ICE Facilities, Respondents are subjecting Petitioners to a heightened risk of contracting COVID-19, for which there is no vaccine and no cure. Petitioners are particularly vulnerable to serious medical complications from COVID-19 infection and are risk of illness and death as long as they are held in detention. By subjecting Petitioners to this risk Respondents are maintaining detention conditions that amount to
53

Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 55 of 57
punishment and fail to ensure safety and health in violation of Petitioners’ due process rights. 157. Likewise, Respondents’ continued detention of Petitioners at the ICE Facilities is deliberately indifferent to Petitioners’ serious medical needs because only releasing Petitioners from custody can adequately protect them from COVID-19. Respondents are both aware of the serious risk posed by COVID-19 and are failing to take the only action that can respond to Petitioners’ medical needs, which is to release Petitioners.
PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grant the following relief:
a. Issue a Writ of Habeas Corpus on the ground that their continued detention violates the Due Process Clause and order Petitioners’ immediate release, with appropriate precautionary public health measures; b. In the alternative, issue injunctive relief ordering Respondents to immediately release Petitioners, with appropriate precautionary public health measures, on the grounds that their continued detention violates Petitioners’ constitutional due process rights; c. Issue a declaration that Respondents’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including all people ages 65 and older and persons of any age with
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Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 56 of 57
underlying medical conditions that may increase the risk of serious COVID19, violates the Due Process Clause; d. Award Petitioners their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and e. Grant any other and further relief that this Court may deem just and proper.

Dated: April 3, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) *

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Case 1:20-cv-00562-JEJ Document 1 Filed 04/03/20 Page 57 of 57

E: dfathi@aclu.org E: echo@aclu.org

American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

*Petition for permission to file pro hac vice forthcoming

56

 </s> Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

MEMORANDUM AND ORDER

April 7, 2020

Pending before the Court is the Motion for Temporary Restraining Order

and/or Preliminary Injunction filed by Petitioners-Plaintiffs Aaron Hope, Iwan

Rahardja, Jesus De La Pena, Rakibu Adam, Duc Viet Lam, Yelena Mukhina,

Nashom Gebretinsae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko,

Brisio Balderas-Dominguez, Viviana Ceballos, Wilders Paul, Marcos Javier Ortiz

Matos, Alexander Alvarenga, Armando Avecilla, Coswin Ricardo Murray, Edwin

Luis Crisostomo Rodriguez, Eldon Bernard Briette, Dembo Sannoh, Jesus Angel

Juarez Pantoja and Alger Fracois, (collectively “Petitioners”). (Doc. 5).

For the reasons that follow, the temporary restraining order shall be granted

and the Respondents shall be directed to immediately release Petitioners today on

their own recognizance.

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Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 2 of 15
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement, (“ICE”), at York County Prison and Pike County Correctional facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Hope is 32 years old and has serious respiratory problems that have led to his hospitalization for pneumonia. He also has sleep apnea and high blood pressure. (Doc. 1, ¶ 3). Rahardja is 51 years old and suffers from diabetes and hypertension. (Doc. 1, ¶ 4). De La Pena is 37 years old and suffers from severe asthma and hypertension and is over-weight. (Doc. 1, ¶ 5). Adam, 34 years old, suffers from asthma and high blood pressure. (Doc. 1, ¶ 6). Viet Lam is 50 years old and suffers from diabetes and high blood pressure. Id. at ¶ 7. Mukhina is 35 years old and suffers from asthma, a heart murmur, and hepatitis C, and has a history of blood clots and seizures. (Doc.1, ¶ 8). Gebretnisae is 28 years old and suffers from Cn’s arthritis and nerve pain, requiring many medications. (Doc. 1, ¶ 9).
Muhammed is 69 years old and suffers from asthma, is pre-diabetic, and has recently lost a significant amount of weight. (Doc. 1, ¶ 10). Weithers is 59 years old and suffers from emphysema and chronic obstructive pulmonary
2

Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 3 of 15
disease. (Doc. 1, ¶ 11). Bugarenko, age 49, suffers from pre-diabetes, high blood pressure, and diverticulitis, as well as debilitating pain that inhibits his ability to walk. (Doc. 1,¶ 12). Baldarez-Domingez is 47 years old and suffers from diabetes, atrial fibrillation, and high blood pressure. (Doc. 1, ¶ 13). Ceballos, 56 years old, suffers from high blood pressure. (Doc. 1, ¶ 14). Paul is 32 years old and suffers from traumatic brain injury, seizures, and headaches. (Doc. 1, ¶ 15).
Matos is 32 years old and suffers from diabetes. (Doc. 1, ¶ 16). Alvargena, age 46, suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability from a prior accident. (Doc. 1, ¶ 17). Avecilla is 53 years old and suffers from diabetes. (Doc 1, ¶ 18). Murray is 45 years old and suffers from asthma but has been unable to obtain an inhaler. (Doc. 1, ¶ 19). Rodriguez is 31 years old and suffers from asthma. (Doc. 1, ¶ 20). Briette is 46 years old and suffers from diabetes, high blood pressure, high cholesterol, depression, and anxiety. (Doc. 1, ¶ 21). Sannoh, 41 years old, suffers from diabetes requiring daily medication. (Doc. 1, ¶ 22). Pantoja is 36 years old and suffers from asthma, sleep apnea, and high blood pressure. (Doc.
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Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 4 of 15

1, ¶ 23). Francois is 45 years old and suffers from hypertension, pain when he urinates, and swollen feet. (Doc. 1, ¶ 24). 1
Named as Respondents are: Clair Doll, Warden of York County Prison; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona FloresLund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION We had occasion to consider the substantially same set of circumstances less
than a week ago in our opinion Thakker v. Doll. No. 1:20-CV00480 (M.D. Pa. Mar. 31, 2020) (Jones, J.) (discussing in-depth the potential severity of COVID-19, its prevalence across the globe, and its impact upon ICE detention facilities in particular). We now begin our analysis of Petitioners’ claims guided by our previous findings.
i. Legal Standard Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of

1

We have previously held that ICE detainees have the requisite standing to bring claims

based upon imminent contraction of COVID-19, and that a habeas petition is the proper vehicle

to do so. Thakker v. Doll, No. 1:20-CV00480, at 5-6 (M.D. Pa. Mar. 31, 2020).

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Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 5 of 15
Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
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Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 6 of 15
ii. Irreparable Harm COVID-19 is a novel coronavirus that causes “serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. [20-cv-562, Doc. 3, Ex. 2]. The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.).” Thakker at 10. Because of these potentially catastrophic complications, COVID-19 has radically transformed our everyday lives in ways previously inconceivable. Most of the county can no longer leave their homes unless absolutely necessary.2 “Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home.” Thakker. at 4. Indeed, the World Health Organization (“WHO”) has declared a global pandemic3 in light of the

2

Sarah Mervosh, Denise Lu, and Vanessa Swales, “See Which States and Cities have Told

Residents to Stay at Home,” NEW YORK TIMES,

https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html (last

accessed April 7, 2020).

3

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

6

Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 7 of 15

stark realities we now face: over one million people worldwide have contracted COVID-19. Well over sixty thousand have perished as a result.4
Less than one week ago, we found that the threat of a COVID-19 outbreak in the Facilities constituted irreparable harm to substantially similar Petitioners, despite the fact that there were, at that time, no confirmed cases of COVID-19 in the Facilities. Thakker, at 7-19.5 In so doing, we noted that “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Id. at 8 (emphasis in original).
We have, unfortunately, been proven correct in this regard. As of the time of this writing, the Pike County Correctional Facility has officially reported that four ICE detainees housed therein have tested positive for COVID-19.6 Four Pike County Correctional employees have also tested positive. (Doc. 6, Ex. 3). An additional detainee at York County Prison has also tested positive. See ICE Latest Statement. And we can only assume that these numbers may well be much higher

4

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed April 7, 2020).

5

In Thakker, we considered the potential harm faced by ICE detainees in county prisons

located in York, Pike, and Clinton Counties, finding that there was a high likelihood that

Petitioners would face severe complications, and even death, should they contract COVID-19 in

the Facilities—which we found to be a likely outcome of their continued detention. Thakker 7-

19. Here, we again consider the likelihood of irreparable harm in two of those same facilities:

those in York and Pike Counties.

6

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

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Case 1:20-cv-00562-JEJ Document 11 Filed 04/07/20 Page 8 of 15
than reported—we have allegations before us that requests by detainees for COVID-19 tests have not been granted, despite explicit knowledge that the virus has entered the Facilities. (Doc. 6, Ex. 7).
We also have further declarations that no effective containment measures have been put into place to protect Petitioners.7 Officers and medical staff, who regularly leave the confines of the Facilities and have ample opportunities to contract the virus elsewhere, do not reliably wear gloves and masks when interacting with inmates. (Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23). Temperature checks are infrequently conducted, even among detainees who had close contact with others who have since tested positive. (Doc. 3, Ex. 23). The cell blocks which housed those who test positive are not thoroughly evacuated and cleaned to prevent the spread. (Doc. 3, Ex. 4). We even have reports that detainees exhibiting COVID-like symptoms are remaining in general housing for days, and that once they are quarantined, no testing is being provided to those who remain. (Doc. 3, Ex. 8).
We have previously discussed in great detail how the incursion of COVID19 into ICE detention facilities could result in catastrophic outcomes, particularly in light of the grim conditions present in these specific Facilities. See Thakker at

7

We have previously discussed the overcrowding and unsanitary conditions present at

these Facilities. See Thakker at 14-15.

8

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14-15. It now seems that our worst fears have been realized—COVID-19 is spreading, and not nearly enough is being done to combat it. We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID19, to bear the consequences of ICE’s inaction. We therefore find that irreparable harm faces the Petitioners before us should they contract COVID-19.8
iii. Likelihood of Success on the Merits Petitioners argue that they are “likely to establish a due process violation through conditions of confinement that expose them to the serious risks associated with COVID-19.” (Doc. 6 at 13). For the reasons that follow, we agree. As we previously stated in Thakker, Petitioners must show that their conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d

8

Many of our sister courts across the nation have agreed with our conclusion. See Thakker

at 16-19.

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229, 232 (3d Cir. 2008)). We therefore ask whether the conditions imposed are rationally related to a legitimate government purpose. They are not.
We previously held, considering the present living conditions present at the same detention Facilities now at issue here, that, “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Thakker at 20-21. There is no indication that there has been an improvement in conditions at the Facilities. Indeed, all indications point towards the contrary. There are now individuals who have tested positive at both Facilities,9 and we have further accusations that those situations are not being properly contained.10 “Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Thakker at 21.
We further note that Respondents previously proffered legitimate government objective holds no greater sway here than it did in Thakker. The Respondents had

9

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

10

See Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23 (alleging

that proper medical protective equipment is not being used by Facility staff, that temperature

checks and COVID-19 testing are not being performed on detainees in close contact with the

virus, and that proper cleaning of housing blocks is not taking place).

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maintained that “preventing detained aliens from absconding and ensuring that they
appear for removal proceedings is a legitimate governmental objective.” (Thakker,
20-cv-480, Doc. 35 at 38). However, “we note that ICE has a plethora of means
other than physical detention at their disposal by which they may monitor civil
detainees and ensure that they are present at removal proceedings, including remote
monitoring and routine check-ins. Physical detention itself will place a burden on
community healthcare systems and will needlessly endanger Petitioners, prison
employees, and the greater community. We cannot see the rational basis of such a
risk.” Thakker at 21-22. We therefore find that Petitioners are likely to succeed on
the merits of their due process “conditions of confinement” claim. 11
11 As previously discussed in Thakker, we also think it likely Petitioners will prevail under the more exacting Eighth Amendment standards as well. To succeed on an Eighth Amendment conditions of confinement claim, the Petitioners must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively ‘sufficiently serious.’” Thakker at n.15. Furthermore, we note that authorities can be “deliberately indifferent to an inmate’s current health problems” when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. “The current measures undertaken by ICE, including ‘cohorting’ detainees, are patently ineffective in preventing the spread of COVID-19,” as is now evidenced by multiple positive COVID-19 tests in both Facilities. Thakker at n.15.
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iv. Balancing of the Equities and Public Interest The equities at issue and public interest “weigh heavily in Petitioners’ favor.” Thakker at 23. We have already noted that Petitioners face a very real risk of serious COVID-19 complications. We also find that Respondents face very little potential harm from Petitioner’s immediate release. While we “agree that preventing Petitioners from absconding. . .is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.” Id. Finally, the public interest strongly encourages Petitioners’ release. “As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, ‘the continued detention of aging or ill civil detainees does not serve the public’s interest.’” Thakker at 23 (citing Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020)). Releasing these high-risk Petitioners, and therefore providing more space for effective social
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distancing within the Facilities, will clearly benefit the surrounding areas. Rural hospitals will be less overwhelmed by potential detainee COVID-19 cases and there will be less of a risk that Facilities staff will carry the virus into their homes and communities. “Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.” Thakker at 23-24.
III. CONCLUSION “In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.” Thakker at 24.
We have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.
We are mindful that judicial decisions such as these are both controversial and difficult for the public to absorb. It is all too easy for some to embrace the notion that individuals such as Petitioners should be denied relief simply because they lack citizenship in this country. However, Article III Courts do not operate according to
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polls or the popular will, but rather to do justice and to rule according to the facts and the law.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison and Pike County Correctional Facility shall be ordered to immediately release the Petitioners today on their own recognizance without fail.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 5), is GRANTED. 2. Respondents, and the York County Prison and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance. 3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release. 4. This TRO will expire on April 20, 2020 at 5:00 p.m. 5. No later than noon on April 13, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction. 6. The Petitioners may file a response before the opening of business on April 16, 2020.
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s/ John E. Jones III John E. Jones III United States District Judge
15

 </s> Case 1:20-cv-00562-JEJ Document 15 Filed 04/08/20 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE, et al., Petitioners-Plaintiffs,
vs. CLAIR DOLL, in his official capacity as Warden of York County Prison, et al.,
Respondents-Defendants.

Case No. 1:20-cv-00562 Judge John E. Jones III

PETITIONERS’ OPPOSITION AND RESPONSE TO RESPONDENTS’ MOTION TO RECONSIDER THE TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00562-JEJ Document 15 Filed 04/08/20 Page 2 of 19
INTRODUCTION Respondents have failed to allege “manifest errors of law or fact” and thus have not met their high burden to justify setting aside this Court’s April 7 Order granting Plaintiffs’ motion for temporary restraining order. ECF 11. Respondents’ attempt to incorporate by reference legal arguments they recently filed in Thakker v. Doll, 1:20-cv-00480, similarly fails to identify manifest errors of law. Perhaps most importantly, Respondents’ motion delaying relief merely heightens the risk to detainees, staff and surrounding communities, as evidenced by developments at the facilities since Petitioners filed this case less than one week ago. At Pike, two female detainees have died, and five others are infected, along with seven correctional officers. Nearly every unit is on “quarantine” (as ICE interprets that term to mean keeping large numbers of potentially infected people together rather than in isolation). York has one confirmed infection, but the many symptomatic detainees cannot get the facility to test them. Respondents’ one declarant, Mr. Dunn, helpfully confirms, either directly or by failing to respond to Petitioners’ claims, the fact that the facilities are not complying with CDC recommendations. The timing of Respondents’ motion for reconsideration is puzzling, considering that top ICE officials were on Capitol Hill the same day (April 7),
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promising lawmakers that they will be releasing medically vulnerable detainees,1 just like the 22 Petitioners this Court ordered released yesterday morning.2 The question is no longer whether COVID-19 will enter these facilities; it has arrived, and with a vengeance at Pike. Given the conditions, York will fare no better. Unless this Court orders the medically vulnerable petitioners released forthwith, their chances of contracting the virus in the petri-dish conditions is near certain, and the consequences are likely to be tragic.
ARGUMENT A. Respondents’ Fail to Meet the Motion to Reconsider Standard Respondents have not met the standard for reconsideration under Fed. R. Civ. P. 59(e), which “serve[s] primarily to correct manifest errors of law or fact in a prior decision of the court. York Int’l Corp. v. Liberty Mut. Ins. Co., 140 F. Supp. 3d 357, 360-61 (M.D. Pa. 2015) (citing United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)). Under Rule 59(e), “a judgment may be altered or amended if the party seeking reconsideration establishes at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment;
1 See Ex. 28. 2 On April 7, 2020, Petitioner Iwan Rahardja notified his undersigned counsel that ICE had released him from custody. Neither Respondents nor their lawyers have notified Petitioners’ counsel. Therefore, only 21 Petitioners remain in detention.
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or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). Respondents do not contend that there is an intervening change in the law or that there is a clear error of law or fact. Consequently, their sole argument is based on allegedly new evidence presented in a declaration by Joseph Dunn, an assistant director of enforcement and removal operations at ICE’s Philadelphia office. Dunn Decl. at ¶¶ 1, 2. As discussed below, Mr. Dunn’s testimony fails to rebut Petitioners’ central arguments that the detention centers do not practice safe social distancing nor follow many critical CDC recommended public health practices. As such, and because reconsideration is considered an extraordinary remedy that should be granted sparingly, this Court should deny the Respondents’ Motion to Reconsider. See D'Angio v. Borough of Nescopeck, 56 F.Supp. 2d 502, 504 (M.D.Pa.1999).
B. Respondents’ Evidence Fails to Address, Much Less Refute, Petitioners’ Central Claims, While Admitting that they are not Following CDC Guidelines
Mr. Dunn’s qualifications As an initial matter, the Dunn declaration is flawed because he neither has the
necessary expertise nor relevant first-hand knowledge. As the Philadelphia Assistant Field Officer Director responsible for law enforcement, he has no evident responsibility for, or expertise in, medical care or public health. Id. at ¶¶ 1, 2.
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Second, he does not contend that he has first-hand information about practices at the facilities, but rather relies on unidentified sources. In his own words, he is “informed” that facilities are following CDC guidance, ¶ 8; “understand[s]” that facilities follow guidance, id.; “informed” about screening process, ¶ 9; and “informed” about cohorting practices, ¶ 12. Respondents had ample time during the four days they took to respond to produce declarations from medical professionals who have first-hand knowledge of, and actually oversee, operations at the respective facilities. But even without considering his shortcomings, Mr. Dunn effectively admits the dangerous conditions and practices within the facilities. Failure to Address Facilities’ Inability to Practice Safe Social Distancing
Most importantly, Mr. Dunn does not even attempt to claim that the facilities are implementing the CDC recommended guidance for social distancing, namely by ensuring “6 feet between all individuals, regardless of the presence of symptoms” Amon Decl. at ¶ 42 (ECF 3). The fact that the facility as a whole is not at its maximum capacity does not answer the question whether those who are being detained can practice this primary means of virus prevention. Amon Decl. at ¶ 35 (ECF 3). Mr. Dunn does not refute or even dispute the Petitioners’ verified pleading that they are housed in spaces where it is not possible to maintain six feet of separation from others, i.e., triple celled at Pike, and in rooms clustering up to 60 individuals at York. Indeed, Respondents’ motion attempts to elide this central
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feature of Petitioners’ argument by characterizing Petitioners’ claims as “premised . . . on alleged sanitary conditions at the facilities….” Docket No. 12 at ¶ 3. In fact, the importance of social distancing, which underlies the stay-at-home and businessclosure orders affecting almost 300 million people in nearly all states, including Pennsylvania, could not be more prominent in Petitioners’ pleadings and Dr. Amon’s expert declaration. See Complaint (ECF 1) ¶¶ 40-49, 116-119 53, 55; TRO Memorandum of Law (ECF 6) at 6, 7; Amon Decl. at ¶¶ 33-42, 45-46, 48, 55, 67, 69. The “Cohorting” Mr. Dunn Describes Contravenes CDC Recommendations
Even where Mr. Dunn provides details of the policies in place at these facilities, his descriptions reveal that ICE’s alleged preventative measures fall short of the CDC’s recommendations. Mr. Dunn claims that the facilities are practicing cohorting, a policy that the CDC identifies as a last resort. The CDC admonishes that facilities must not “cohort confirmed cases with suspected cases or case contacts.” Amon Decl. at ¶ 57 (ECF 3). Yet Mr. Dunn touts a policy that does just that: any person who has had contact with a confirmed case is forced into a common space.3
3 Dunn also claims that individuals who present symptoms will be placed in isolation, where they will be tested. See Dunn Decl. at ¶ 11. He further states that people who are diagnosed are placed in an “appropriate setting.” Leaving aside the fact that this assertion contradicts his later statement that individuals in Pike who are symptomatic are quarantined with their cellmates, he fails to respond to Petitioners’ concerns that there is insufficient space in detention facilities to isolate
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Dunn Decl. at ¶ 12. At Pike, this means that cellmates of an individual with symptoms are kept in
the same quarantined cell as the infected individual. Dunn Decl. at ¶ 22.b. At York, where individuals are housed in dorms, the whole dorm would be subject to such a quarantine. Because detained individuals cannot practice social distancing in these quarantined spaces, the facilities are forcing vulnerable individuals into direct contact with the virus. Amon Decl. at ¶ 61 (ECF 3). In so doing, they are facilitating transmission, including to Petitioners and others who are elderly and/or medically vulnerable, for whom infection may be a death sentence. Id. at ¶¶ 61, 70 Screening Practices Ineffective Because Virus Already in Facilities.
Mr. Dunn admits (but understates the extent to which) the virus has already penetrated both facilities. Dunn Decl. at ¶ 21. Five individuals in immigration detention, not to mention correctional officers working in the detention facilities, have already tested positive for COVID-19, id., a stark increase from the one
all symptomatic individuals. See Amon Decl. at ¶ 60 (ECF 3) (“Given the rate of spread in detention facilities, there will be many more than 1-4 people with COVID-19 in the detention centers. This limited physical infrastructure will mean that ICE cannot comply with this protocol [for isolating individuals in separate spaces]).” Nor does he provide any detail as to what this “appropriate setting” looks like in the limited space of detention facilities. Again, his omission serves as an admission that ICE has not actually implemented these specific CDCrecommended measures, like isolation rooms.
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individual with confirmed infection less than a week ago. Amon Decl. at ¶ 53. What Dunn has failed to mention is that this spread has been lethal: two detainees in Pike have died after exposure to infection at the facility. Ex. 27. Many blocks at Pike are now under quarantine as individuals are reporting COVID-19 symptoms. See Thompson Decl. at ¶¶ 2, 7. Dorms in York have also been put under quarantine, where sick individuals remain without testing. Supp. Decl. Mukhina at ¶¶ 3-4. In the context of inadequate testing, a lack of proven cases is “functionally meaningless” for determining risk of COVID-19 transmission. Golob Decl. (ECF 3-3) at ¶ 7. Despite the government’s failure to test those who are symptomatic and report results, individuals in detention have been informed that they’ve been exposed to the virus. Supp. Decl. Briette at ¶ 4; Supp. Decl. Murray at ¶ 5.
Nor will the screening practices Mr. Dunn describes prevent further introduction of the virus into the facilities, or the transportation of the virus back into the surrounding communities by those who leave the facility regularly. Dunn Decl. at ¶¶ 9, 10. The questions asked of new detainees and the temperature screening of staff fail to account for community spread and presymptomatic transmission: “Given presymptomatic transmission, to effectively screen staff, the facilities would have to conduct frequent (daily) tests, implemented at multiple times a day as staff and detainees entered the facility.” Amon Decl. at ¶ 50(d) (ECF 3). Nowhere does Dunn allege such widespread and aggressive testing. And new admissions should be
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quarantined for fourteen days, regardless whether symptomatic, Amon Decl. at ¶ 50(d), which does not and, given space limitations, could not happen. Hygiene Practices Also fall Short of CDC Recommendations
Even Mr. Dunn’s description of new masking procedures for all staff at York and Pike is facially problematic. Notably, Mr. Dunn does not allege that masks are given to all detainees. Individuals at York are allegedly given masks only when they leave a cohorted unit or work in the kitchen, and even then they are not given the N95 masks proven most effective to prevent the spread of the virus. Dunn Decl. at ¶ 22(a).
Mr. Dunn makes no claim that detainees at either facility are provided sterile masks while they are in their cohorts, as recommended by the CDC to prevent spread of infection. See Amon Decl. at ¶ 58 (ECF 3). Petitioners confirm that they are not given masks while cohorted in cells. Supp. Decl. Sannoh at ¶ 7. Where they are provided masks, they are given one mask to wear for days on end, creating opportunities for infection from the mask itself. Id.; Supp. Decl. De La Pena at ¶ 4; Supp. Decl. Mukhina at ¶ 2; see also Amon Decl. at ¶ 58 (ECF 3) (describing necessary sanitization procedures when using masks including replacing mask after each use and washing hands after removing mask).
Even on basic hygiene precautions Mr. Dunn’s declaration exposes glaring problems. While he describes how staff are provided with hand sanitizer, he omits
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any mention of giving sanitizer to detainees. Dunn Decl. at ¶ 14a-b. Petitioners confirm that they are not receiving sanitizer. Supp. Decl. Briette at ¶ 8; Supp. Decl. Sannoh at ¶ 7. Mr. Dunn’s Declaration Effectively Confirms the Facilities Do not Abide by CDC Guidelines
In sum, Mr. Dunn either admits, or admits by omission, that the facilities are not following the CDC-recommended public health precautions. They are failing to implement the primary means to prevent infectious spread, social distancing, by continuing to house people in dorms and cells where they cannot maintain six feet of separation. Amon Decl. at ¶ 42; This remains true even when individuals exhibit symptoms of COVID-19: instead of isolating those who are infected, Mr. Dunn admits that symptomatic individuals remain in confined spaces with others, Dunn Decl. at ¶ 22(b), and people are cohorted without regard to whether they have contracted the virus or not, id. at 12. The CDC specifically disavows this practice because it threatens to facilitate transmission to those who are not yet infected. Amon Decl. at ¶¶ 57, 61 (ECF 3). Screening mechanisms fail to isolate those who may have been exposed but are asymptomatic, Dunn Decl. at ¶ 11, Amon Decl. at ¶ 50 (ECF 3), and lack of widespread testing creates conditions for introduction into facilities that the CDC has warned against. Amon Decl. at ¶ 66 (ECF 3). Nor are the new hygiene measures that have allegedly been implemented sufficient where the facility limits the number of masks and where sanitization supplies like hand
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sanitizer are not provided. See id. (citing to CDC’s recognition that risks are heightened where facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants). The consequences of these failures manifest in the increasing numbers of symptomatic and infected individuals at York and Pike. 4
C. Conditions at Pike and York Have Deteriorated and Petitioners Continue to be in Danger
Given the trajectory of this highly contagious and often deadly virus, it is unsurprising that the conditions at both Pike and York have deteriorated, even since Petitioners filed this case less than a week ago, on April 3.
Most significantly, Mr. Dunn fails to mention that two detainees at Pike have now died. Ex. 27. Mr. Dunn also substantially understates the amount of contagion, acknowledging only four ICE detainees at Pike have COVID-19. Dunn Decl. at ¶ 21. In fact, however, five detainees, in addition to the two who passed away, have tested positive, as have seven staff members. Ex. 27. Yesterday (April 7), the person in the cell next to Petitioner De La Pena tested positive for COVID-19, and Pike
4 Mr. Dunn also recites, at length, the Petitioners’ purported criminal histories. Putting aside that some of his representations are imprecise or inaccurate, the focus on past criminal conduct is a red herring. Almost all the Petitioners have nonviolent convictions (and some merely have pending charges, no convictions). For the few Petitioners that do, they are dated and/or they have taken steps towards rehabilitation. Importantly, for those with convictions, they have already completed their criminal sentences. There is no reason to deny their release given the myriad supervision tools ICE have at their disposal.
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officials have left him in the cell, with his cellmates. Supp. Decl. De La Pena at ¶ 1. Petitioner Rodriguez has COVID-19 symptoms since March 29, including breathing problems, a cough and a fever, but prison officials have not tested or quarantined him, nor has he been seen by a physician. See Thompson Decl. at ¶ 5. Three correctional officers have quit in the last few days, Supp. Decl. De La Pena at ¶ 3, causing a staffing shortage. Supp. Decl. Murray at ¶ 4. Apparently, there is only one block that does not have someone who tested positive for COVID-19. Supp. Decl. Briette at ¶ 2.
At York, at least one detainee has tested positive for COVID-19. Ex. 37; see also Supp. Decl. Mukhina at ¶ 4. The COs are nervous too; they told Petitioner Gebretnisae that it is “too risky and that we shouldn’t be here.” Supp. Decl. Gebretnisae at ¶ 11. And while COs have been provided masks, most of the time they wear them on their foreheads, leaving their mouths uncovered. Supp. Decl. Paul at ¶ 3. Detainees are not provided with gloves except to clean, except that today one Petitioner received gloves to call his lawyer. Supp. Decl. Paul at ¶ 3; Supp. Decl. Gebretnisae at ¶ 2.
Petitioners at Pike report that they continue to be unable to meaningfully engage in social distancing. See e.g. Supp. Decl. Briette at ¶ 2 (recreation with many other men). Detainees continue to be triple celled, even if they have COVID-19 symptoms. Supp. Decl. Murray at ¶ 6; Thompson Decl. at ¶ 7. Even where, like in
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Petitioner De La Pena’s block, only one cell is let out at a time, “half his block” has fevers and his cell is next to someone who tested positive for COVID-19. Supp. Decl. De La Pena at ¶ 2. At York, Petitioners are likewise unable to practice social distancing. See e.g. ECF 3-8 at ¶ 10 (“I am on a lock with around 56 other women. Imagine that, 56 people sharing 4 showers, six sinks, and six toilets. This is a recipe for disaster.”); Supp. Decl. Paul at ¶ 5 (confirming he is still housed with 42 men); see also ECF 3-15 at ¶ 12.
Lack of adequate personal protective equipment continues to be a problem. While detainees have been provided masks at Pike, they have been told to reuse them and their gloves because they are in short supply. Supp. Decl. De La Pena at ¶¶ 5, 8; Thompson Decl. at ¶¶ 2, 5; Supp. Decl. Briette ¶ 6. York also began providing masks to some blocks but they are in short supply and detainees have been told to reuse them. Supp. Decl. Dembo Sannoh at ¶ 7; Supp. Decl. Paul at ¶ 3. Other blocks do not have masks. Supp. Decl. Gebretnisae at ¶ 2. On the women’s side, staff began wearing masks last week, but none were made available to detainees until April 5, 2020. Supp. Decl. Mukhina at ¶ 5. This was two days after a detainee on their block tested positive for COVID-19 and more than one week after the woman first exhibited symptoms. Id. at ¶ 2; ECF 6-8.
Hygiene has also gotten worse. At Pike, Petitioner Murray describes how they ran out of soap on April 5 and he was unable to thoroughly wash his hands for several
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days. Murray Decl. at ¶ 3. Pike ran out of cleaner, forcing detainees to wait for hours until more was provided. Supp. Decl. Brisette at ¶ 8. The showers are cleaned once a day, which means multiple users shower between cleanings. Id. at ¶ 9. The food on Petitioner De La Pena’s block is served by a detainee who has a fever; the same detainee also cleans his block. Supp. Decl. De La Pena at ¶ 9, 10. Detainees are not provided with hand sanitizer. Thompson Decl. at ¶ 11. At York, detainees also do not have sanitizer. Supp. Decl. Gebretnisae at ¶ 8; Supp. Decl. Paul at ¶ 4. Petitioners also report insect infestation. Id. at ¶ 11 (black worms or maggots in the shower); Supp. Decl. Sannoh at ¶ 9 (flies).
Despite Mr. Dunn’s claims that healthcare is accessible, Petitioners continue to report profound deficiencies in medical care. At Pike, Petitioner Rodriguez has not been seen by a doctor for his COVID-19 symptoms, despite multiple requests. Thompson Decl. at ¶¶ 3, 4. And at York, a woman, who at the time was symptomatic and now is confirmed with COVID-19, was left in the women’s block (about 56 women) for several days prior to receiving medical attention, despite repeated requests. Supp. Decl. Mukhina at ¶ 5; ECF 3-8 at ¶ 10. Petitioners have also not received adequate medical care—or even attention—despite repeated requests. See e.g. Supp. Decl. Sannoh at ¶ 3; Supp. Decl. Paul at ¶¶ 7, 8 (describing how nurse told him would have appointment with doctor weeks ago but has not been seen).
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In sum, Petitioners’ supplemental declarations confirm not only that the problems originally alleged in the verified complaint persist, but have worsened. And the increasing number of positive tests, symptomatic people and deaths are undeniable, which likely is why Respondents have not done so.
D. Respondents’ Legal Arguments Fail to Identify a Manifest Error of Law
Respondents’ legal arguments, incorporated by reference from Thakker v. Doll, largely restate arguments already raised and rejected by this Court and the many courts around the country that have ordered ICE to release detainees. Nonetheless, Petitioners address in greater depth one argument, not because it is more persuasive but because it has not been addressed sufficiently.
As a threshold matter, Respondents’ contention that Petitioners are challenging the conditions of their confinement – in the sense of seeking different or more favorable conditions – is incorrect. Petitioners seek immediate release on the ground that there are no conditions of confinement, short of release, sufficient to prevent a violation of their Constitutional rights. Such a claim lies at the very core of habeas. See Camacho Lopez v. Lowe, Civil Action No. 3:20-CV-563, Doc. 11 (M.D. Pa. April 7, 2020), slip op. at 9 (“When a petitioner seeks immediate release from custody, the ‘sole federal remedy’ lies in habeas corpus”) (quoting Preiser v. Rodriguez, 411 U.S. 475 (1973)).
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Even construing Petitioners’ claim as a challenge to conditions of confinement, Respondents’ argument fails. Respondents concede that neither the Supreme Court nor the Third Circuit has foreclosed challenging conditions of confinement via habeas (Opp. at 26, Thakker). Indeed, they further concede that the Third Circuit has approved such challenges under what they characterize as “exceptional factual and legal circumstances.” Id. at 26-27 (citing Ali v. Gibson, 631 F.2d 1126, 1128 (3d Cir. 1980) and Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241-43 (3d Cir. 2005)).
On April 7, Chief Judge Conner, relying upon Ali and Woodall, held that an ICE detainee’s claim that he was infected with the virus causing COVID-19 and was not receiving appropriate treatment was cognizable in habeas. Camacho Lopez, slip op. at 12-13. That holding applies with equal force here. See also Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7-8 (D. Md. Apr. 3, 2020) (claim by ICE detainees seeking release on the ground that their exposure to COVID-19 while in detention violated their Constitutional rights was properly brought under sec. 2241).
Defendants’ argument proves entirely too much. They argue both that Petitioners’ claims are not cognizable in habeas, and that release is categorically unavailable in a civil action – and therefore is never available at all. Opp. at 44-48. The former claim is wrong, as just demonstrated; the latter claim disregards, and is
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contrary to, binding Supreme Court precedent. See Brown v. Plata, 563 U.S. 493

(2011) (affirming prisoner release order where overcrowding was the “primary

cause” of violation of prisoners’ right to adequate medical and mental health care).

CONCLUSION

Every minute matters. Petitioners ask this Court to reinstate its Order for

remaining Petitioners’ immediate release, before it is too late.

Dated: April 8, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532)* DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org

/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) Witold J. Walczak (PA 62976) Muneeba S. Talukder (CA 326394)** Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT

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Case 1:20-cv-00562-JEJ Document 15 Filed 04/08/20 Page 18 of 19
125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org *Petition for permission to file pro hac vice forthcoming **Admitted pro hac vice
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Case 1:20-cv-00562-JEJ Document 15 Filed 04/08/20 Page 19 of 19

CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Response to Respondents’ Motion for Reconsideration on counsel of record via the Court’s ECF filing system.

Dated: April 8, 2020

/s/ Vanessa L. Stine Vanessa L. Stine (PA 319569) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org

 </s> Case 1:20-cv-00562-JEJ Document 22 Filed 04/10/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

ORDER

April 10, 2020

Before the Court for resolution is the Respondents’ Motion to Reconsider

and Stay Temporary Restraining Order (“the Motion”) (Doc. 12) filed on April 7,

2020. On April 7, 2020, we issued an Order (Doc. 13) staying the TRO issued by

us earlier that day.1 We have received the Petitioners’ brief in opposition to the

Motion to Reconsider and the Respondents’ reply. (Docs. 15 and 17). This matter

is therefore ripe for our review. For the reasons that follow, we shall deny the

Motion, lift the stay imposed on our April 7, 2020 TRO and order that the

Petitioners2 be released forthwith.

1 The TRO ordered Respondents to immediately release Petitioners from detention and ordered Petitioners to self-quarantine in their homes for a period of 14 days. (Doc. 11).
2 Since the filing of this matter, Petitioners Duc Viet Lam and Iwan Rahardja have been released from ICE custody. Therefore, this matter is moot as to these Petitioners and they shall be terminated as parties to this action.
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Case 1:20-cv-00562-JEJ Document 22 Filed 04/10/20 Page 2 of 6
I. STANDARD OF REVIEW The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence, Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), and, as such, “motions for reconsideration should be granted sparingly.” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). Generally, a motion for reconsideration will only be granted on one of the following three grounds: (1) if there has been an intervening change in controlling law; (2) if new evidence, which was not previously available, has become available; or (3) if it is necessary to correct a clear error of law or to prevent manifest injustice. Max’s Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A motion for reconsideration may not be used to present a new legal theory for the first time, to raise new arguments that could have been made in support of the original motion, see Vaidya v. Xerox Corp., No. CIV.A.97-547, 1997 WL 732464, at *2 (E.D. Pa. 1997), and should not ask the court to rethink a decision that it has already made. Tobin v. GE, No. Civ. A. 95-4003, 1998 WL 31875, at *2 (E.D. Pa. 1998). Mere dissatisfaction with the Court’s ruling is not a proper basis for reconsideration. Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993).
With this exacting standard in mind, we turn to an analysis of the Respondents’ Motion.
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Case 1:20-cv-00562-JEJ Document 22 Filed 04/10/20 Page 3 of 6
II. DISCUSSION In support of their reconsideration request, the Respondents rely on a newly supplied affidavit of Joseph Dunn, Assistant Field Office Director (AFOD) with the Department of Homeland Security, Immigration and Customs Enforcement (ICE). (Doc. 12, Ex. 1). Within his affidavit, AFOD Dunn advises of various protocols being undertaken at Pike and York County Correctional Facilities to prevent the spread of COVID-19.3 Respondents submit that the new evidence, in the form of AFOD Dunn’s affidavit, makes it clear that the Petitioners’ constitutional rights are not being violated by the conditions inside the institutions. Respondents argue, therefore, that Petitioners cannot and have not established a likelihood of success on the merits of their claims. Additionally, within his affidavit AFOD Dunn supplies the criminal histories of the Petitioners, and Respondents argue that the public interest is not served by releasing the Petitioners into the community.
Taking the latter point first, the Court respects the Respondents’ position that certain Petitioners pose a flight risk or danger to the community. However, it is the Court’s view that attaching conditions to the Petitioners’ release, which we shall do herein, quells that concern. We simply cannot find, in the face of the
3 It is well to note that AFOD Dunn drafted his affidavit relying exclusively upon the assurances of others. We have no indication that he has personally visited these facilities in the course of preparing his affidavit.
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scope of the COVID-19 pandemic that is washing through this country and the subject facilities, that the public interest favors continued detention of civil immigration detainees with underlying health conditions that render them particularly vulnerable were they to contract COVID-19.
Further, we are unmoved by AFOD Dunn’s assertions that the facilities are equipped to stop the spread of COVID-19.4 While they may have ramped up their sanitation protocols, the simple fact that inmates are incapable of social distancing in the facilities remains. The conditions at the facilities as faced by these Petitioners continue to represent a threat to their constitutional rights.
Accordingly, based on the foregoing, the Respondents’ Motion shall be denied and the stay previously placed on the TRO shall be lifted. In the Order that follows, we shall include additional conditions relative to the Petitioners’ release, in an attempt to allay some of the Respondents’ fears concerning risk of flight and danger to the community. Nothing herein prevents us from imposing different or additional conditions in the future, should this TRO be extended or converted into a preliminary injunction.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Respondents’ Motion to Reconsider (Doc. 12) is DENIED.
4 As the parties are aware, inmates at both institutions are infected with COVID-19, and two female inmates at Pike have died of COVID-19 in recent days.
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Case 1:20-cv-00562-JEJ Document 22 Filed 04/10/20 Page 5 of 6
2. The stay imposed (Doc. 13) on the TRO of April 7, 2020 is LIFTED and Respondents, and the York County Prison and Pike County Correctional Facility, SHALL IMMEDIATELY RELEASE the Petitioners TODAY. The said release period shall extend until such time as the COVID-19 state of emergency as declared by the Governor of the Commonwealth of Pennsylvania is lifted, or by further Order of this Court.
3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release.
4. The following conditions shall attach to this Order of the Petitioners’ release: a. This Order expires immediately if a Petitioner absconds; b. This Order requires Petitioners to comply with all Executive Orders of the Governor of Pennsylvania, as well as national, state, and local guidance regarding staying at home, sheltering in place, and social distancing; c. This Order does not prevent the government from taking Petitioners back into custody should they commit any further crimes or otherwise violate the terms of their release; d. The Petitioners shall report their whereabouts once per week to
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Case 1:20-cv-00562-JEJ Document 22 Filed 04/10/20 Page 6 of 6
their attorneys, who in turn shall report to the Respondents if a Petitioner has absconded; e. The Petitioners must appear at all hearings pertaining to their removal proceedings, and in the event that they are subject to a final order of deportation for which arrangements have been finalized within the period of this Order, they shall fully comply with the said order of deportation and all instructions pertaining thereto; and f. Respondents may impose other reasonable nonconfinement terms of supervision that would not require Petitioners to violate national, state and local guidance regarding staying at home, sheltering in place, and social distancing. 5. As referenced in our April 7, 2020 Order, the TRO expires on April 20, 2020 at 5:00 p.m.
s/ John E. Jones III John E. Jones III United States District Judge
6

 </s> Eastern Region Office PO Box 60173 Philadelphia, PA 19102 215-592-1513 T 215-592-1343 F
Central Region Office PO Box 11761 Harrisburg, PA 17108 717-238-2258 T 717-236-6895 F
Western Region Office PO Box 23058 Pittsburgh, PA 15222 412-681-7736 T 412-681-8707 F

April 13, 2020
VIA EMAIL
Re: Hope v. Doll, Case No. 1:20-cv-00562 (M.D. Pa.)
Dear Counsel:
We are in receipt of your letter requesting that Petitioners coordinate with ERO to voluntarily surrender for re-detention. The status quo at the time of Chief Judge Smith’s entry of a stay order was that eighteen of the remaining twenty Petitioners had been released (ICE released two earlier). They remain at liberty subject to the district court’s release conditions, including some requested by ERO. We believe that any effort by your clients to re-detain these Petitioners would violate existing court orders. And there is simply no need to do so.
Furthermore, your request that the eighteen medically vulnerable Petitioners return to detention facilities with documented COVID-19 contagion is cruel and irresponsible. Public health experts, including from the Centers for Disease Control, have found that the death rate for people in these high-risk categories is 15%. Golob Declaration (ECF 3-2) para 4. That means more than one in seven of these high-risk people will die if infected, and a much higher percentage will suffer serious illness, typically requiring intensive care treatment that will only further overwhelm local hospitals. Even Attorney General Barr has recognized the danger of detaining these medically vulnerable individuals, ordering the Bureau of Prisons to consider releasing them to home detention. See https://www.justice.gov/file/1262731/download; see also https://www.justice.gov/file/1266661/download (directing governmental officers at specific institutions with outbreaks of COVID-19 and other similarly-

situated institutions to prioritize consideration of transfer to home confinement). Any attempt to return Petitioners to detention, barring violation of the extant conditions, would be tantamount to a potential death sentence. ECF 22 at 4.
The district court’s conditions of release, see ECF 22, include future check-in dates and ankle monitors for some of the Petitioners. And Petitioners are aware that any lawless behavior will subject them to re-detention. Petitioners remain at their respective homes, complying with the terms of the Order, and they will continue to do so.
As the district court found in Thakker, and referred to in its Hope decision, “Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.” Thakker at 24.” ECF 11 at 13. While we can appreciate that you believe Petitioners should not have been released, your clients released them and there is neither legal nor public-safety cause to re-detain them. To the contrary, the unprecedented public-health crisis and the risk of grievous harm and even death to our clients should preclude their re-detention unless they violate release conditions.
I would be happy to discuss this matter with you. If you believe such a discussion could be helpful, please email me at vwalczak@aclupa.org and I will share with you my cell phone number. Thank you.
Respectfully,
/s/ Witold J. Walczak Witold J. Walczak (PA 62976) AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org

 </s> Case: 20-1784 Document: 15-1 Page: 1 Date Filed: 04/15/2020
No. 20-1784
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
AARON HOPE, et al., Petitioners-Appellees, v.
CLAIR DOLL, et al., Respondents-Appellants.
On Appeal from the United States District Court For the Middle District of Pennsylvania D.C. No. 1:20-cv-000562 District Judge: Hon. John E. Jones III
OPPOSITION TO APPELLANTS’ MOTION TO STAY

Will W. Sachse Thomas J. Miller Kelly Krellner Carla G. Graff DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-2496

Witold J. Walczak Vanessa L. Stine Muneeba S. Talukder Erika Nyborg-Burch AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864
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Case: 20-1784 Document: 15-1 Page: 2 Date Filed: 04/15/2020
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513
David C. Fathi Eunice H. Cho AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616
Cecillia D. Wang Stephen Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0775
Michael K.T. Tan Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600
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Case: 20-1784 Document: 15-1 Page: 3 Date Filed: 04/15/2020

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................1
JURISDICTION.......................................................................................... 4
BACKGROUND ......................................................................................... 5 A. Procedural History.....................................................................5
B. The Record Before the District Court ...........................................8
ARGUMENT............................................................................................ 13
I. THE GOVERNMENT FAILS TO ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS....................................................... 14
A. The District Court Correctly Applied Fifth and Eighth Amendment Standards.............................................................. 14
II. PETITIONERS WILL SUFFER AN IRREPARABLE INJURY— DEATH OR SERIOUS COVID-19 ILLNESS—IF THE STAY IS GRANTED...................................................................................... 23
III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST WEIGH AGAINST A STAY.......................................................................... 26
CONCLUSION......................................................................................... 28
CERTIFICATE OF COMPLIANCE ............................................................ 31

-i-
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Case: 20-1784 Document: 15-1 Page: 4 Date Filed: 04/15/2020
TABLE OF AUTHORITIES
CASES
Arriaga Reyes v. Decker, 2:20-cv-03600-MCA, ECF No. 26 (D.N.J. Apr. 12, 2020) .............................3
Aruanno v. Johnson, 683 F. App’x 172 (3d Cir. 2017) .............................................................. 15
Bahena Ortuno v. Jennings, No. 3:20-cv-02064, ECF Nos. 38 & 51 (N.D. Cal. Apr. 8 & Apr. 14, 2020).................................................................................................3
Basank v. Decker, -- F. Supp. 3d ----, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).............. 4, 20
Bent v. Barr, No. 4:19-cv-06123, ECF No. 26 (N.D. Cal. Apr. 9, 2020)..............................3
Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274 (3d Cir. 2018)..................................................................... 17
Brown v. Plata, 563 U.S. 493 (2011) ............................................................................... 21
Coronel v. Decker, -- F. Supp. 3d ----, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)....................4
Crawford v. Bell, 599 F.2d 890 (9th Cir.1979)..................................................................... 21
Davis v. Pa. Dep’t of Corr., No. 15-587, 2015 WL 5918909 (W.D. Pa. Oct. 7, 2015).............................. 21
Demore v. Kim, 538 U.S. 510 (2003) ............................................................................... 16
Diop v. ICE, 656 F.3d 221 (3d Cir. 2011)................................................................16, 17
E. D. v. Sharkey, 928 F.3d 299 (3d Cir. 2019)................................................................15, 16
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Case: 20-1784 Document: 15-1 Page: 5 Date Filed: 04/15/2020
Farmer v. Brennan, 511 U.S. 825 (1994) ..........................................................................20, 21
Helling v. McKinney, 509 U.S. 25 (1993)................................................................................. 19
In re Revel AC, Inc., 802 F.3d 558 (3d Cir. 2015)................................................................13, 23
Ixchop Perez v. Wolf, 5:19-cv-05191, ECF No. 29 (N.D. Cal. Apr. 14, 2020)..................................3
Jennings v. Rodriguez, 138 S. Ct. 830 (2018).................................................. 17
Liriano Olivo v. Tsoukaris, No. 2:20-cv-03481-JMV, ECF No. 24 (D.N.J. Apr. 9, 2020)..........................3
Malam v. Adducci, No. 2:20-cv-10829, ECF No. 23 (E.D. Mich. Apr. 6, 2020) ...........................3
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 595 F. Supp. 1417 (D.N.J. 1984), as amended, 717 F. Supp. 268 (D.N.J. 1989)......................................................................................... 19
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003)..................................................................... 18
Nken v. Holder, 556 U.S. 418 (2009) ............................................................................... 13
Doe v. Barr, 3:20-cv-02141, ECF No. 27 (N.D. Cal. Apr. 12, 2020)..................................3
Phillips v. Superintendent Chester SCI, 739 F. App’x 125 (3d Cir. 2018) .............................................................. 20
Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017)..................................................................... 23
Robles Rodriguez v. Wolf, No. 5:20-cv-00627, ECF Nos. 32, 35-39 (C.D. Cal. Apr. 2, 2020)...................4
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Case: 20-1784 Document: 15-1 Page: 6 Date Filed: 04/15/2020
Thakker v. Doll, -- F. Supp. 3d ----, No. 1:20-cv-00480-JEJ, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ................................................................. passim
Thomas v. Tice, 948 F.3d 133 (3d Cir. 2020)..................................................................... 19
Toma v. Adducci, No. 2:20-cv-10829-JEL-APP, Dkt. No. 29 (E.D. Mich. Apr. 9, 2020)...................................................................................................... 3
United States v. Salerno, 481 U.S. 739 (1987) ............................................................................... 15
Zadvydas v. Davis, 533 U.S. 678 (2001) ..........................................................................15, 17
STATUTES 8 U.S.C. § 1226(a) ...................................................................................... 16 8 U.S.C. § 1226(c) ........................................................................... 16, 17, 27 28 U.S.C. § 1292 ................................................................................. 2, 4, 13 28 U.S.C. § 1651 ..........................................................................................4 OTHER AUTHORITIES Fed. R. App. P. 32(a)(5)............................................................................... 30 Fed. R. App. P. 32(a)(6)............................................................................... 30 Fed. R. App. P. 32(a)(7)(B).......................................................................... 30 SCOTT A. ALLEN, MD, FACP AND JOSIAH RICH, MD, MPH TO HOUSE
AND SENATE COMMITTEES ON HOMELAND SECURITY, AVAILABLE AT HTTPS://WHISTLEBLOWER.ORG/WPCONTENT/UPLOADS/2020/03/DRS.-ALLEN-AND-RICH3.20.2020LETTER-TO-CONGRESS.PDF......................................................... 20
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Case: 20-1784 Document: 15-1 Page: 7 Date Filed: 04/15/2020
INTRODUCTION Respondents-Appellants’ (“government” or “Respondents”) emergency motion seeks to stay the District Court’s temporary restraining order, thereby allowing them to return nineteen elderly and medically-vulnerable PetitionersAppellees (“Petitioners”) to ICE detention facilities plagued by documented COVID-19 virus infection where they will face a severe risk of serious illness and death.1 Dkt. No. 10, Mot. Stay.2 All Petitioners in this case are at extreme risk of severe illness or death if they contract COVID-19 because they are over age 65 and/or have a pre-existing medical condition that makes them especially vulnerable to serious and irreparable injury. Indeed, according to epidemiological studies, their risk of death if they contract COVID-19 is about 15%—approximately one in seven—and chances of severe illness, including the need for intensive-care hospital services and resulting permanent disability, are even higher. ECF No. 3-2, Golob Decl. ¶ 4. Expert testimony and extensive record evidence presented to the District Court during a 17-day period over the course of two related cases—this one and
1 The District Court’s April 10 decision affected twenty petitioners, as Respondents voluntarily released two beforehand. Prior to this Court’s 7:00 p.m. stay order on April 10, Respondents issued release orders for eighteen Petitioners. Of the two remaining Petitioners, Respondents transferred one over the weekend to a Texas detention facility and the last one remained at Pike pursuant to a New York state detainer, but that detainer was lifted on April 14 and he has been released. 2 Citations to filings in this appeal are cited hereafter as “Dkt. No. __.”
1
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Case: 20-1784 Document: 15-1 Page: 8 Date Filed: 04/15/2020
Thakker v. Doll—demonstrated that conditions inside the two jails did not and could not meet CDC-recommended social distancing and quarantining requirements. See, e.g., ECF Nos. 2, 3-1, 3-3 through 3-24, 3-26, 15-2 through 15-12; see also Thakker v. Doll, -- F. Supp. 3d ----, No. 1:20-cv-00480-JEJ, 2020 WL 1671563, at *3-6 (M.D. Pa. Mar. 31, 2020). The outbreak of coronavirus and confirmed COVID-19 cases in the two ICE detention facilities, and two deaths at Pike, in early April significantly heightened the risk to Petitioners and fully justified the District Court’s April 10 release order. The nineteen petitioners are all sheltering at home with their families, subject to release conditions. Contrary to Respondents’ representation, half were released with ankle monitors. In short, the government is asking this Court to return nineteen men and women, all of whom are especially vulnerable due to their age and/or a pre-existing medical condition, to COVID-19-infested jails where there is a more than a one-in-seven chance they will die and an even greater chance they will need life-sustaining hospitalization. See generally ECF No. 3-2, Golob Decl.
For the reasons set forth in Petitioners’ Jurisdictional Letter, Dkt. No. 13, Petr’s’ Jurisdictional Ltr, this Court should dismiss the government’s appeal under 28 U.S.C. § 1292 for lack of jurisdiction to review a temporary restraining order, and it should reject the government’s alternative request that the Court exercise its mandamus jurisdiction to overturn the District Court’s carefully reasoned opinion and factual findings, which are supported by ample record evidence. If this Court
2
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Case: 20-1784 Document: 15-1 Page: 9 Date Filed: 04/15/2020
does not dismiss based on a jurisdictional defect, it should deny the requested stay
because Respondents have failed to satisfy the heavy burden to justify it, especially
given the gravity of the harm to Petitioners.
The District Court did not abuse its discretion in determining that Petitioners
are likely to succeed on the merits of their Fifth Amendment due process claims, or
in ordering release based on the extreme and irreparable injury threatening
Petitioners’ lives. In balancing the equities, the District Court plainly confronted the
government’s public-safety arguments and imposed many of their requested release
conditions. The government’s appeals to public safety are belied by their failure to
seek similar relief in other cases around the country that also ordered release of
elderly and sick ICE detainees,3 including the same District Court’s March 31 Order
3 The following courts have ordered release of medically vulnerable people from ICE detention due to irreparable harm posed by COVID-19 contagion, and as of April 14 the government had not filed a notice of appeal in any of them. See, e.g., Bahena Ortuno v. Jennings, No. 3:20-cv-02064, ECF Nos. 38 & 51 (N.D. Cal. Apr. 8 & Apr. 14, 2020) (ordering release of total of six medically vulnerable immigrant detainees in light of the risk of COVID-19); Ixchop Perez v. Wolf, 5:19-cv-05191, ECF No. 29 (N.D. Cal. Apr. 14, 2020) (ordering immediate release of medically vulnerable immigrant detainee due to risk of COVID-19); Doe v. Barr, 3:20-cv02141, ECF No. 27 (N.D. Cal. Apr. 12, 2020) (same); Arriaga Reyes v. Decker, 2:20-cv-03600-MCA, ECF No. 26 (D.N.J. Apr. 12, 2020) (same for five detainees); Bent v. Barr, No. 4:19-cv-06123, ECF No. 26 (N.D. Cal. Apr. 9, 2020) (granting TRO releasing medically vulnerable immigrant detainee because of the risk of COVID-19); Toma v. Adducci, No. 2:20-cv-10829-JEL-APP, ECF No. 29 (E.D. Mich. Apr. 9, 2020) (same for one detainee); Liriano Olivo v. Tsoukaris, No. 2:20cv-03481-JMV, ECF No. 24 (D.N.J. Apr. 9, 2020) (same for three detainees); Malam v. Adducci, No. 2:20-cv-10829, ECF No. 23 (E.D. Mich. Apr. 6, 2020) (same for one detainee); Thakker v. Doll, -- F. Supp. 3d ----, 2020 WL 1671563 (M.D. Pa.
3
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Case: 20-1784 Document: 15-1 Page: 10 Date Filed: 04/15/2020
directing the release of 13 different men and women from the very ICE facilities at issue here. See Thakker, 2020 WL 1671563. Petitioners are complying with their release conditions by sheltering at home where they are protected from the high risk of death from COVID-19 in infected ICE jails. The government’s current stay application utterly fails to meet this Court’s standard for a stay and it should be denied. In this unprecedented time, sending Petitioners back into a high-risk environment would be unconscionable. If Respondents insist that some Petitioners need additional control measures, they can and should seek relief in the District Court on an individualized basis.
JURISDICTION For the reasons set forth in Petitioners’ response to the Court’s April 10, 2020 order requesting briefing on jurisdictional issues, which is incorporated herein by reference, this Court does not have jurisdiction under 28 U.S.C. § 1292 to review the District Court’s temporary restraining order, and the Court should reject Respondents’ alternative argument that this Court should exercise its mandamus jurisdiction under 28 U.S.C. § 1651. See Petitioners’ Jurisdictional Letter at Dkt. No.
Mar. 31, 2020) (same for eleven detainees); Basank v. Decker, -- F. Supp. 3d ----, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (same, because “[t]he nature of detention facilities makes exposure and spread of the [coronavirus] particularly harmful”); Coronel v. Decker, -- F. Supp. 3d ----, 2020 WL 1487274, at *9-10 (S.D.N.Y. Mar. 27, 2020) (same for four detainees); Robles Rodriguez v. Wolf, No. 5:20-cv-00627, ECF Nos. 32, 35-39 (C.D. Cal. Apr. 2, 2020) (same for six detainees).
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13, Petr’s’ Jurisdictional Ltr. Consequently, in addition to the merits arguments set forth below, Petitioners urge the Court to dismiss the government’s appeal and deny the stay application for lack of jurisdiction.
BACKGROUND A. Procedural History Petitioners are twenty-two men and women who were detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Pike County Correctional Facility and York County Prison while they defend themselves in removal proceedings. Each of the Petitioners meets the CDC’s guidelines describing people who are at an elevated risk of death or severe illness from COVID-19—they are over the age of 65, suffer from one or more listed medical conditions, or both. ECF No. 3-1, Amon Decl. ¶¶ 8, 11-22. On April 3, 2020, Petitioners filed an action for potentially life-saving injunctive and declaratory relief as COVID-19 infection began to spread rampantly in the United States, including in ICE detention facilities. ECF No. 1, Pet. & Compl. This lawsuit was a successor to one pending before the same District Court, which resulted in an order directing the release of thirteen other medically vulnerable ICE detainees. See Thakker, 2020 WL 1671563.
On April 7, the District Court issued a temporary restraining order directing Petitioners’ release on their own recognizance. ECF No. 11, Hope Apr. 7 TRO. The court was “guided by [its] previous findings” in Thakker, noting that, “[w]e had
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occasion to consider the substantially same set of circumstances less than a week ago in our opinion [in] Thakker v. Doll.” Id. at 4 (citation omitted). The Hope court found that the record before it did not demonstrate “an improvement in conditions at the Facilities” during the preceding week, but that in fact, “all indications point towards the contrary.” Id. at 10. The court then concluded that there was “no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Id. (citation omitted).
Later that same day, in response to the government’s motion for reconsideration and stay, ECF No. 12, the District Court quickly stayed its order, ECF No. 13, Order Granting Mot. Recons. The government motion included a 34page declaration from Philadelphia Assistant Field Office Director Joseph Dunn, purporting to describe ICE treatment protocols and conditions at the York and Pike facilities, and exhaustively cataloguing—in over 30 pages—each Petitioner’s record. ECF No. 12-1, Dunn Decl. 1. The next day, Petitioners filed a legal memorandum responding to the motion for reconsideration, supported by, among other things, eight supplemental declarations from Petitioners to update the court on rapidly deteriorating conditions inside the jails. See ECF No. 16. The government replied with a second legal memorandum, ECF No. 17, and, subsequently, two notices of supplemental authority, ECF Nos. 19 and 20, and a status letter
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accompanied by yet another declaration from Mr. Dunn, ECF No. 21-1, Supp. Dunn Decl. Additionally, on Thursday afternoon, April 9, the court held an off-the-record telephone conference that largely focused on the government’s insistence that if the court were to order Petitioners released, it should do so with conditions. See ECF No. 14 (setting telephone status conference for Apr. 9, 2020).
On April 10, 2020, the District Court denied the reconsideration motion and lifted the stay on its temporary restraining order requiring the government to release the remaining twenty Petitioners, but this time, the court added conditions to ensure their appearance at future proceedings. ECF No. 22, Hope Apr. 10 TRO. Contrary to Respondents’ contention that the District Court failed to consider their evidence, Dkt. No. 10 at 3 (“District Court by all indications effectively ignored [Respondents’] brief”) and 17 (“The court thus ordered injunctive relief without analyzing the government’s arguments and evidence”), the District Court wrote that it was “unmoved by AFOD Dunn’s assertions that the facilities are equipped to stop the spread of COVID-19 . . . [because of] the simple fact that inmates are incapable of social distancing in the facilities remains.” ECF No. 22, Hope Apr. 10 TRO at 4. The District Court, therefore, found that Petitioners were likely to prevail on the merits and suffer an irreparable injury—death or serious illness—in the absence of relief. ECF No. 11, Hope Apr. 7 TRO, at 7-11. Finally, the District Court also pointedly addressed Respondents’ claims that releasing Petitioners posed a risk: “the
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Court respects the Respondents’ position that certain Petitioners pose a flight risk or danger to the community. However, it is the Court’s view that attaching conditions to the Petitioners’ release, which we shall do herein, quells that concern.” ECF No. 22, Hope Apr. 10 TRO at 3.4
Later on April 10, before counsel for the government filed a request for emergency stay, Respondents released eighteen of the remaining twenty Petitioners. Two remained detained on criminal detainers. Respondents subsequently transferred one Petitioner over the weekend to Texas. Petitioner Armando Avecilla’s New York state detainer was lifted on April 14 and he has since been released.
B. The Record Before the District Court Petitioners developed a robust evidentiary record in the District Court, by way of thirty-three fact declarations, documenting the conditions of confinement at Pike and York. See ECF Nos. 3-3 through 3-26, 6-8 and 15-4 through 15-11. Petitioners also introduced two expert witness reports, from a public-health expert (Dr. Amon) and a medical expert (Dr. Golob), who discussed the extremely high risk of serious
4 The District Court ordered seven different conditions, including that the release order expires if a Petitioner absconds; Petitioners must report their whereabouts once a week; Petitioners must attend all removal hearings and if ordered deported, comply with an order of deportation; and Respondents are permitted to impose “other reasonable nonconfinement terms of supervision.” ECF No. 22 at 5-6. As noted supra, ICE did impose additional supervision terms, fitting nine of the Petitioners with ankle monitors and imposing more reporting requirements, including future check-ins with their local ICE field office.
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illness for medically vulnerable people, like Petitioners; the elevated risk of COVID19 contagion in detention facilities; how ICE’s guidelines and practices, even if followed, were ineffective; and how the conditions at Pike and York posed an imminent and severe public health and safety threat. See ECF No. 3-1, Amon Decl.; ECF No. 3-2, Golob Decl. Importantly, the record in this case built on a voluminous record developed before this same District Court a week earlier, in Thakker v. Doll. In short, the District Court had ample evidence to evaluate Petitioners’ allegations, witness the progression of the virus through the two facilities over a two-week period, and assess the relative harm to the respective parties.
The risk of severe illness and even death to Petitioners, were they to contract COVID-19, is clear. Dr. Golob described how deadly COVID-19 is for people in high-risk categories: the death rate is 15%, meaning one in seven high-risk people will die if infected. ECF No. 3-2, Golob Decl. ¶ 4. Short of killing someone, the virus can cause severe harm to people who are in the high-risk categories, including permanent lung damage and heart failure. Id. at ¶¶ 4, 9. Dr. Amon reviewed Petitioners’ declarations and found each to be medically vulnerable, ECF No. 3-2, Amon Decl. ¶¶ 10-32, with twenty at a “high risk for severe illness or death,” id. at ¶¶ 11-19, 21, 23-31, and the other two at “heightened risk of complications from COVID-19,” id. at ¶¶ 20, 22.
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Central to Petitioners’ claim in both this case and Thakker is the concept of social distancing, which underlies the stay-at-home and business-closure orders affecting about 300 million people in nearly all states, including Pennsylvania. See ECF No. 1, Pet. & Compl. ¶¶ 40-49, 116-19; ECF No. 6, TRO Mem. at 6, 7; ECF No. 3-1, Amon Decl. ¶¶ 33-42, 45-46, 48, 55, 67, 69. Dr. Amon emphasized that because there is not yet a cure for COVID-19, social distancing is critical, i.e., at least six feet must be maintained between all individuals, as this is “the main strategy for limiting disease transmission.” ECF No. 3-1, Amon Decl. ¶ 35. Because it is the primary means of preventing transmission, the CDC recommends social distancing for correctional and detention facilities. Id. at ¶ 42.
The record is replete with Petitioner declarations, submitted both at the inception of the lawsuit on April 3 and supplemental ones accompanying the response to Respondents’ motion for reconsideration on April 8, describing how the housing arrangements in the two facilities effectively make social distancing impossible. See, e.g., ECF No. 3-8, Mukhina Decl. ¶ 10; ECF No. 3-9, Gebretnisae Decl. ¶ 14; ECF No. 3-13, Dominguez Decl. ¶ 12; ECF No. 3-15, Paul Decl. ¶ 12; ECF No. 3-21, Briette Decl. ¶ 14. The record evidence in Thakker and this case demonstrates beyond peradventure that Petitioners are forced to live in cramped spaces—either in dorms of 50 to 60 people at York, or in cells at Pike, where they are triple-bunked. See, e.g., ECF No. 3-15, Paul Decl. ¶ 10; ECF No. 3-18, Avecilla
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Decl. ¶ 8; ECF No. 15-5, Thompson Decl. ¶ 7. Dr. Amon testified that these practices are not only insufficient to prevent the spread of COVID-19, but will actually hasten it. ECF 3-1, Amon Decl. ¶¶ 44-48; see also ECF No. 3, Amon Decl. ¶¶ 44-50, 61-62, 67-69. And even with the best protocols (which ICE does not have), the “only viable public health strategy available is risk mitigation,” which includes “the release of individuals who can be considered at high-risk of severe disease if infected with COVID-19.” ECF No. 3, Amon Decl. ¶ 70; see also id. at ¶¶ 44-50; 61-62; 67-69.
Respondents’ rejoinder is confined to two declarations submitted by ICE Assistant Field Office Director (“AFOD”) in the Philadelphia office, Joseph Dunn, ECF No. 12-1, Dunn Decl.; ECF No. 21-1, Supp. Dunn. Decl., wherein he confirms, either directly or by ignoring Petitioners’ verified claims, that ICE does not follow the most important CDC guidelines on social distancing, robust hygiene, and effective screening and quarantine practices. For instance, he does not refute or even dispute the Petitioners’ verified pleading that they are housed in spaces where it is not possible to maintain six feet of separation from others, i.e., people are triple celled at Pike, and in rooms clustering up to 60 individuals at York.
Even where Mr. Dunn provides details of the policies in place at these facilities, his descriptions reveal that ICE’s alleged preventative measures fall short of CDC guidelines. For instance, he claims that the facilities are “cohorting” (the
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ICE term for quarantine), but admits they are doing so in a way the CDC cautions detention centers to avoid, i.e., “cohort[ing] confirmed cases with suspected cases or case contacts.” See ECF 3-1, Amon Decl. ¶ 57. Indeed, Dunn touts the ICE policy that does just that: any person who has had contact with a confirmed case is forced into a common space. ECF 12-1, Dunn Decl. ¶ 12. At Pike, this means that cellmates of an individual with symptoms are kept not only on the same unit, but quarantined in the same cell as the potentially infected individual. Id. at ¶ 22.b. At York, where individuals are housed in dorms, the whole dorm would be subject to such a quarantine. Because detained individuals cannot practice social distancing in these quarantined spaces, the facilities are forcing vulnerable individuals into direct contact with the virus. ECF No. 3-1, Amon Decl. ¶ 61. In so doing, they are facilitating transmission, including to Petitioners and others who are elderly and/or medically vulnerable. Id.
The foregoing is a small sampling of the evidence Petitioners adduced in the District Court to demonstrate that the conditions at York and Pike, acknowledged by Respondents’ sole witness, expose Petitioners to extreme risk of contracting COVID-19, which because of their age or medical condition may be a death sentence.
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ARGUMENT As set forth above and in Petitioners’ separate jurisdictional brief, see Dkt. No. 13, Petr’s’ Jurisdictional Ltr., this Court does not have appellate jurisdiction under 28 U.S.C. § 1292 to review a temporary restraining order, and the Court should reject the government’s request that it exercise mandamus jurisdiction. If the Court reaches the merits of the government’s stay application, this Court must consider four factors: “(1) whether the appellant has made a strong showing of the likelihood of success on the merits; (2) will the appellant suffer irreparable injury absent a stay; (3) would a stay substantially harm other parties with an interest in the litigation; and (4) whether a stay is in the public interest.” In re Revel AC, Inc., 802 F.3d 558, 565 (3d Cir. 2015) (citing Republic of Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 658 (3d Cir. 1991)); see also Nken v. Holder, 556 U.S. 418, 425-26 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)) (setting out the “traditional” standard for stay). Notably, the Supreme Court has warned that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’ . . . and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Nken, 556 U.S. at 427 (quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam); Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)). The government’s application fails to demonstrate any injury necessitating a stay, much less irreparable
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injury, while the Petitioners face a high risk of dying of COVID-19 if the stay is granted and they are re-detained in virus-infested detention centers. The government fails to meet the stay standard, and the application should be denied. I. THE GOVERNMENT FAILS TO ESTABLISH A LIKELIHOOD OF
SUCCESS ON THE MERITS The government argues it is likely to defeat Petitioners’ Fifth Amendment claim, but the District Court correctly held that it is Petitioners who are likely to succeed on the merits. The government’s merits arguments are a mix of substantive and procedural contentions, but each fails and the Court should not disturb the District Court’s findings. A. The District Court Correctly Applied Fifth and Eighth
Amendment Standards The government argues that the District Court applied the incorrect standard when it found that the government’s continued detention of the Petitioners is not rationally related to a legitimate government purpose; that the proper standard is the Eighth Amendment’s deliberate indifference standard, which applies to convicted prisoners; and that Petitioners’ detention is rationally related to a legitimate interest. As an initial matter, the government’s assertion that the District Court erred in applying the due process standard fails because that court also correctly concluded, in the alternative, that Petitioners were likely to prevail on the deliberate indifference standard. ECF No. 11, Hope Apr. 7 TRO at 11 n.11.
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Fifth Amendment Due Process The District Court correctly applied the due process standard. People in
immigration detention, even those with prior criminal convictions, are detained pursuant to civil immigration laws that are “nonpunitive in purpose and effect.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). As civil detainees, they are “entitled to more considerate treatment and conditions of confinement than criminal[] detainees whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). Importantly, this Court recently recognized that immigration detainees have the same due process protections as pretrial detainees. E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019).
When considering the constitutionality of civil detention, the Supreme Court has held that the due process touchstone is whether the detention is punitive. ECF No. 11, Hope Apr. 7 TRO at 9-10 (citing Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008); United States v. Salerno, 481 U.S. 739, 746 (1987) (citing Bell v. Wolfish, 441 U.S. 520, 535 & n. 16 (1979)). The test “to determine whether challenged conditions of confinement amount to punishment . . . [is] whether a condition of confinement is reasonably related to a legitimate governmental objective.” Sharkey, 928 F.3d at 307 (quoting Hubbard, 538 F.3d at 232). If the detention is excessive in relation to the asserted purpose, it is deemed punitive. Salerno, 481 U.S. at 747
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(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–169 (1963)). See also Sharkey, 928 F.3d at 307 (quoting Hubbard, 538 F.3d at 232) (“if it is not [reasonably related to a legitimate governmental objective], we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’”).
Importantly, the prohibition on punitive civil immigration detention applies regardless of which statute underlies the detention. Congress has generally provided that noncitizens defending against removal proceedings may be released on bond or conditions to address any flight risk they might pose. See 8 U.S.C. § 1226(a). Congress has also provided for detention without any custody hearing for noncitizens who are charged under certain criminal grounds of deportability. 8 U.S.C. § 1226(c). But detention under both statutes is still subject to constitutional limits. See, e.g., Diop v. ICE, 656 F.3d 221, 235 (3d Cir. 2011) (holding that at a certain point mandatory detention under § 1226(c) can become “unreasonable and, therefore, a violation of the Due Process Clause”); see also Demore v. Kim, 538 U.S. 510, 526 (2003) (“the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.”) (emphasis
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added); Zadvydas, 533 U.S. at 699-700 (“if removal is not reasonably foreseeable, the court should hold continued detention unreasonable.”).5
At a minimum, the Fifth Amendment Due Process Clause prohibits “‘unsanitary, unsafe, or otherwise inadequate conditions,’” which is why these conditions are sufficient to state a due process claim for civil detainees. Thakker, 2020 WL 1671563, at *7 n.14 (quoting Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016)).
The District Court correctly applied these precedents to the following factual findings, among others: that Petitioners “face[] an imminent risk of death or serious injury if exposed to COVID-19,” ECF No. 11, Hope Apr. 7 TRO at 2; that there were confirmed cases of COVID-19 already in the Pike County and York County prisons where some of the Petitioners were being detained, id. at 7; and that “no effective containment measures have been put into place to protect Petitioners,” id. at 8. As to this last finding, the District Court cited to declarations submitted by the Petitioners that refuted many of the government’s contentions about protective measures it had put in place, see ECF No. 11, Hope Apr. 7 TRO at 8; see also ECF
5 In Borbot v. Warden Hudson County Correctional Facility, 906 F.3d 274, 278 (3d Cir. 2018), this Court acknowledged that “[t]he Supreme Court recently overruled Diop’s interpretation of 8 U.S.C. § 1226(c).” This Court clarified, however, that “Jennings [v. Rodriguez, 138 S. Ct. 830 (2018)] did not call into question our constitutional holding in Diop that detention under § 1226(c) may violate due process if unreasonably long.” Id.
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No. 3-4, 3-8, 3-16, 3-17, 3-23, which the government repeats in the instant stay application. Dkt. No. 10, Mot. Stay at 4-6, 14-16. Under these circumstances, continued ICE detention is not rationally related to the legitimate governmental purpose of assuring appearance. Instead, it puts the Petitioners at risk of death or severe illness, transforming civil detention rationally related to the purpose of assuring appearance for removal proceedings into unquestionably punitive detention in violation of the Due Process Clause. The District Court further found that the government’s interests in ensuring the Petitioners’ appearance could be met through means other than continued detention under risk of death, such as release conditions. ECF No. 11, Hope Apr. 7 TRO at 11; ECF No. 22, Hope Apr. 10 TRO at 4. Eighth Amendment Conditions of Confinement
The District Court also concluded correctly that the conditions Petitioners face are so severe that they likely violate not only the Fifth Amendment, but also the stricter prohibition of cruel and unusual punishment that applies to convicted prisoners under the Eighth Amendment. ECF No. 11, Hope Apr. 7 TRO at 11, n.11. If a condition of confinement violates prisoners’ rights under the Eighth Amendment, it necessarily violates the rights of civil detainees as well. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
To prevail on a claim under the Eighth Amendment, Petitioners “must meet two requirements: (1) the deprivation alleged must be objectively ‘sufficiently
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serious,’ and (2) the ‘prison official must have a sufficiently culpable state of mind’”—that is, deliberate indifference to the prisoner’s health or safety. Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Placing Petitioners in the path of COVID-19 despite the significant likelihood that they will experience serious illness or death if infected clearly constitutes a “sufficiently serious” deprivation. The Supreme Court has recognized that the government violates the Eighth Amendment when it crowds prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). See also Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 595 F. Supp. 1417, 1430–31, 1438 (D.N.J. 1984), as amended, 717 F. Supp. 268 (D.N.J. 1989) (Eighth Amendment rights of prisoners living in overcrowded cells, with inoperable showers, an over-utilized medical department, and dirty and unsanitary conditions that “create health and safety hazards” were violated because those individuals “are deprived of basic human needs such as habitable shelter and are generally forced to endure conditions which amount to an unnecessary infliction of pain”). See generally ECF No. 3, Amon Decl.; ECF No. 3-2, Golob Decl. Petitioners are at specific and heightened risk of serious illness or death.
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Furthermore, the record contains overwhelming evidence that Respondents are aware of the risk posed by COVID-19. Individuals at both York and Pike have tested positive for the disease, and two have died from it. ECF No. 15-2. Beginning in February 2020, medical experts for DHS repeatedly alerted ICE to the threat posed by COVID-19 and have now urged officials to consider releasing, at a minimum, detainees who are particularly vulnerable to COVID-19. See Letter of Dr. Allen & Dr. Rich at 2-3, 5-6.6 Additionally, in late March, Petitioners’ counsel sent a letter to the Philadelphia ICE office requesting the agency release medically vulnerable detainees to protect against the risk of severe harm from COVID-19. ECF No. 1, Pet. & Compl. ¶ 123 (citing Thakker ECF No. 2-19, Ruiz Decl. ¶ 3).
Finally, in addition to Respondents’ actual knowledge of the risk, the evidence establishes Respondents’ deliberate indifference to the risks posed by COVID-19 because those risks are obvious. See Farmer v. Brennan, 511 U.S. 825, 842 (1994); Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (applying Farmer standard). As many other courts have now recognized, “[t]he risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.” Basank v Decker, No. 1:20-cv-02518,
6 March 19, 2020 letter from Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH to House and Senate Committees on Homeland Security, available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020Letter-to-Congress.pdf
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2020 WL 1481503, at *12 (S.D.N.Y. Mar. 26, 2020) (ordering releases of people detained by ICE); see also supra at n.2 (collecting cases).
In short, the evidence shows that COVID-19 poses a serious risk of severe injury and death and that Respondents are aware of that risk, both from explicit notice they have received, and because it is obvious. Respondents’ failure to release Petitioners from these intolerable conditions is deliberate indifference to that risk, in violation of the Petitioners’ constitutional rights. See Farmer, 511 U.S. at 842. Release is Proper Remedy
The government’s argument that the remedy of release was improper (Dkt. No. 10, Mot. Stay at 16-17) is misplaced. The cases it cites do not address emergent and life-threatening conditions like those presented in the record here. Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir.1979); Davis v. Pa. Dep’t of Corr., No. 15-587, 2015 WL 5918909, at *2 (W.D. Pa. Oct. 7, 2015). The District Court properly found that Petitioners’ situation was dire and that it was physically impossible for the Respondents to maintain proper distancing and adequate medical care, and the court had the authority to preserve the lives and health of the Petitioners by immediately removing them from the life-threatening conditions at Pike and York. ECF No. 11, Hope Apr. 7 TRO at 6-9, 12-14. It is beyond dispute that a federal court may order the release even of convicted state prisoners if necessary to remedy a constitutional violation. See Brown v. Plata, 563 U.S. 493, 545 (2011) (affirming prisoner release
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order when necessary to remedy the state’s failure to provide minimally adequate medical and mental health care). The District Court Plainly Considered Respondents’ Submissions
The government’s complaints about a lack of opportunity to brief the issues before the District Court fall flat. As set forth above, see discussion at p. 5, supra, the District Court did consider the government’s motion for reconsideration and “substantive brief” (Dkt. No. 10, Mot. Stay at 17) after it issued its initial temporary restraining order on April 7—indeed, the court stayed its own order at the government’s request. ECF No. 13, Stay Pending Recons. In vacating the stay and reinstating the earlier order, the District Court’s April 10 order added new findings relating to the actual spread of COVID-19 in the Pike and York facilities and addressed Mr. Dunn’s declaration. In light of this procedural posture, there was no error in the District Court holding the government to the standard for a motion for reconsideration.
In short, the District Court correctly held that the Petitioners demonstrated a likelihood of success on the merits. The government has entirely failed to carry its burden here of proving the opposite, that it is likely to prevail on the merits.
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II. PETITIONERS WILL SUFFER AN IRREPARABLE INJURY— DEATH OR SERIOUS COVID-19 ILLNESS—IF THE STAY IS GRANTED. The substantial risk of death or life-threatening illness to the Petitioners is
such an extreme and irreparable injury that the stay should be denied based upon this factor alone. Even if the government were to demonstrate a likelihood of success on the merits (which it has failed to do), the irreparable harm that Petitioners would suffer more than justifies the District Court’s order and the denial of the instant stay application. See Reilly v. City of Harrisburg, 858 F.3d 173, 178 (3d Cir. 2017) (“How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.”) (quoting Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)); see also In re Revel AC, Inc., 802 F.3d 558, 569 (3d Cir. 2015) (“In deciding how strong a case a stay movant must show, we have viewed favorably what is often referred to as the “sliding-scale” approach.”) (citing Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978); Del. River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917 (3d Cir.1974)).
The government asks this Court to overturn the District Court’s findings on Petitioners’ irreparable harm, which were based upon a record that was substantial even at the TRO stage. As discussed above, the evidentiary record amply supports
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the District Court’s irreparable harm findings that Petitioners’ age or medical condition places them at high risk of serious illness or death and that Respondents have not provided, and given the infrastructure limitations of the two detention facilities cannot provide, safe conditions. See discussion at 7-9, supra.
Based on copious record evidence, the District Court made findings that each of the Petitioners meets the criteria for a high risk of death or serious illness from COVID-19 infection: being over 65 years old and/or suffering from one or more of a specific list of medical conditions. ECF No. 11, Hope Apr. 7 TRO at 9. The District Court found that Petitioners’ medical conditions include diabetes, hypertension, asthma, traumatic brain injury, hepatitis C, emphysema, and chronic pulmonary disease, among others. Id. at 2-4. The District Court found, based on this record evidence, that “[e]ach Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19,” id. at 2, and that there were “declarations that no effective containment measures have been put into place to protect Petitioners.” Id. at 8. In short, the District Court found, “catastrophic outcomes” were likely once COVID-19 infections took hold in the prisons where Petitioners were detained. Id.
The government’s contention that the District Court improperly disregarded its declarations setting out measures it claims to have taken to protect the health of the Petitioners, Dkt. 10, Mot Stay at 9-10, is simply not true. The two declarations
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submitted by ICE AFOD Joseph Dunn purportedly describe “precautionary measures” ICE has undertaken to “protect all detainees from COVID-19.” Id. at 1415. The District Court expressly considered the Dunn declarations and found that they do little more than show a “ramp[] up of sanitation protocols,” and do not demonstrate that ICE has cured the fundamental problem that “inmates are incapable of social distancing in the facilities.” ECF No. 22, Hope Apr. 10 TRO at 4. The District Court therefore had no reason to reconsider its prior finding that “keeping Petitioners detained in unsanitary, tightly-packed environments” subjected them to an unconstitutional risk of grave harm. ECF No. 11, Hope Apr. 7 TRO at 10-11 (quoting Thakker, 2020 WL 1671563 at *8); see also Thakker, 2020 WL 1671563 at *5-6 (describing conditions of “overcrowding that makes social distancing impossible at all three [ICE] facilities” in the Middle District). The District Court also rightly pointed out that Mr. Dunn’s assessment of the prisons was based “exclusively on the assurances of others,” ECF No. 22, Hope Apr. 10 TRO at 3 n.3, in contrast to the substantial firsthand evidence Plaintiffs presented. ECF Nos. 3-1 (Amon Decl.), 3-2 (Golob Decl.), 3-3 through 3-26 (Pet’rs’ Decls.), 15-4 through 15-11 (Supp. Pet’rs’ Decls.); see also Thakker, 2020 WL 1671563, at *5-6.
Moreover, at the time the District Court issued its orders, the growing number of confirmed cases at the prisons was bearing out the court’s concerns. See ECF No. 22, Hope Apr. 10 TRO at 4 n.4 (“As the parties are aware, inmates at [Pike and
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York] are infected with COVID-19, and two female inmates at Pike have died of COVID-19 in recent days.”). No publicly-available reporting indicates that conditions in these facilities have improved. III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST WEIGH
AGAINST A STAY. The government’s contentions about irreparable harm to its interests pale in comparison to the risk of death or serious injury on the Petitioners’ side. The government argues that the District Court’s temporary restraining order “has already inflicted harm by causing the release into the community of 19 criminal aliens” and asserts that “[a]ll petitioners have criminal histories and some have significant criminal history.” Dkt. 10, Mot. Stay at 18. The government also asserts that the release of the Petitioners (to shelter in place at home) irreparably harms the United States because “Petitioners are in immigration detention because they have violated the immigration laws of the United States.” Id. at 2. Contrary to the government’s assertions in the stay application, the District Court considered all of the government’s submissions about Petitioners’ past criminal history—and rejected them or found them outweighed by the risk of harm to the Petitioners. The District Court wrote that it “respects the Respondents’ position that certain Petitioners pose a flight risk or danger to the community. However, it is the Court’s view that attaching conditions to the Petitioners’ release, which we shall do herein, quells that concern.” ECF No. 22, Hope Apr. 10 TRO at
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3. The District Court then imposed seven release conditions, including several sought by the government, and specifically authorized “other reasonable nonconfinement terms of supervision.” ECF No. 22 at 5-6. Indeed, Respondents fitted half of the Petitioners with ankle monitors prior to release last Friday.
The government also makes the straw man argument that “[t]o the extent that the District Court believed that all criminal aliens should be released during the pandemic, that is not the view of Congress, which has mandated detention for several categories of aliens under section 1226(c) and other provisions without providing health exceptions.” Dkt. No. 10, Mot. Stay at 18. But the District Court held no such thing. Rather, based on ample record evidence, the District Court “disagree[d] entirely with the Respondents’ contention that the Petitioners face no potential risk of irreparable harm” where these “Petitioners all suffer from pre-existing conditions that render them exceptionally vulnerable to COVID-19 and places them at a greater risk of death than the average individual.” ECF No. 25, Order Denying Stay (emphasis added). The District Court did not reach any holding about whether §1226(c) applies because that is not an issue in the case. Even if §1226(c) applies to some of the Petitioners, that statute cannot possibly stand for the proposition that detention overrides all other emergency conditions. By the government’s logic, if an ICE detention facility were on fire, people subject to § 1226(c) should not be evacuated.
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The public interest would not be served by a stay order that would overturn
the District Court’s well-supported factual findings and legally sound temporary
restraining order, and put the Petitioners back into prisons where their very lives
would be in danger.
CONCLUSION
Petitioners urge this Court to heed the District Court’s rationale for issuance
of the temporary restraining order:
We previously held, considering the present living conditions present at the same detention Facilities now at issue here, that, “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Thakker at 20-21. There is no indication that there has been an improvement in conditions at the Facilities. Indeed, all indications point towards the contrary. There are now individuals who have tested positive at both Facilities, and we have further accusations that those situations are not being properly contained. “Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Thakker at 21.
ECF No. 11, Hope Apr. 7 TRO at 10 (citing Thakker, 2020 WL 1671563 at *8).
We have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.
Id. at 13.
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The situation inside the detention facilities continues to deteriorate. This

Court should reject the government’s motion to allow it to re-detain medically

vulnerable Petitioners in the virus-infested ICE detention facilities. Such re-

detention is likely to have tragic results.

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Esq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080) Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394) Erika Nyborg-Burch (NY 5485578) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org

David C. Fathi (WA 24893)** Eunice H. Cho (WA 53711)** AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org

P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org

Michael K.T. Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) * AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Cecillia D. Wang Stephen Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION
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IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org
Counsel for Petitioners-Appellees

39 Drumm Street San Francisco, CA 94111 T: (415) 343-0775

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,007 words. This brief complies with L.A.R. 31.1(c) because the text of the electronic brief is identical to the text in the paper copies and because a virus-protection program, Metadact has been run on the file and no virus was detected. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Times New Roman 14-pt font.

Dated: April 15, 2020

/s/ Will W. Sachse Will W. Sachse
Counsel for Petitioners-Appellees

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CERTIFICATE OF SERVICE I hereby certify that on April 15, 2020, I caused to be served via ECF filing
on all Counsel listed below, a true and correct copy of the following documents:
OPPOSITION TO APPELLANTS’ MOTION TO STAY
Richard Euliss, Esq. Direct: 717-221-4462 Email: richard.d.euliss@usdoj.gov Fax: 717-221-4493 [Federal government] Office of United States Attorney Middle District of Pennsylvania 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Harlan W. Glasser, Esq. Direct: 717-221-4482 Email: harlan.glasser@usdoj.gov [Federal government] Office of United States Attorney Middle District of Pennsylvania 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Jeffrey S. Robins, Esq. Direct: 202-616-1246 Email: jeffrey.robins@usdoj.gov Fax: 202-305-7000 [COR NTC Federal government] United States Department of Justice Office of Immigration Litigation Room 6040 P.O. Box 878 Ben Franklin Station
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Washington, DC 20044 Counsel for Respondents-Appellants Dated: April 15, 2020

/s/ Will W. Sachse Will W. Sachse
Counsel for Petitioners-Appellees

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE; IWAN RAHARDJA JESUS DE LA PENA; RAKIBU ADAM DUC VIET LAM; YELENA MUKHINA NAHOM GEBRETNISAE; ISMAIL MUHAMMED; GLENN WEITHERS KONSTANTIN BUGARENKO; BRISIO BALDERAS-DOMINGUEZ; VIVIANA CEBALLOS; WILDERS PAUL; MARCOS JAVIER ORTIZ MATOS; ALEXANDER ALVARENGA ARMANDO AVECILLA; COSWIN RICARDO MURRAY; EDWIN LUIS CRISOSTOMO RODRIGUEZ; ELDON BERNARD BRIETTE; DEMBO SANNOH; JESUS ANGEL JUAREZ PANTOJA; and ALGER FRANCOIS,

Case No. ________

Petitioners-Plaintiffs, vs.
CLAIR DOLL, in his official capacity as Warden of York County Prison; CRAIG A. LOWE, in his official capacity as Warden of Pike County Correctional Facility; SIMONA FLORES-LUND, in her official capacity as Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; and CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security,
Respondents-Defendants.

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF

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INTRODUCTION Petitioners/Plaintiffs (hereafter “Petitioners”) are a diverse group of twentytwo individuals from around the world who are held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison and Pike County Correctional Facility while they await disposition of their immigration cases. They are united by the fact that they are over age 65 and/or adults who have a serious pre-existing medical condition, which the United States Centers for Disease Control has determined puts them at significantly higher risk of severe disease and death if they contract COVID-19. On March 31, this Court ordered ICE to release similarly-situated immigration detainees from these facilities because record evidence showed that, “adequate measures are not in place and cannot be taken to protect [such high-risk detainees] from COVID-19 in the [York, Clinton and Pike] detention facilities, and that [absent release] catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities.” See Thakker v. Doll, No. 1:20-cv-00480-JEJ, at *19 (M.D. Pa. Mar. 31, 2020) (elipses added). See also, id. at *9 (“Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical
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concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.”).1
The precarious situation facing the medically-at-risk petitioners in this case is in all material respects indistinguishable from Thakker, with one difference: the impending irreparable harm is far greater because the situation at York and Pike has deteriorated significantly since March 31, with quarantines in effect and reports of positive COVID-19 test results at both facilities. “[T]he status quo of a mere few [days] ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly.” Id. at 24. In light of the deteriorating conditions bearing down on these medically vulnerable petitioners, they respectfully ask this Court to issue a temporary restraining order directing their release forthwith.
JURSIDICTION AND VENUE 1. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
1 Filings in the Thakker v. Doll, Case No. 20-480 (M.D. Pa.) litigation will hereafter be referred to as Thakker Dkt. No. __.
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2. Venue lies in the United States District Court for the Middle District of Pennsylvania because Petitioners are detained by Respondents/Respondents (hereafter “Respondents”) at two county prisons – located in York and Pike counties – both of which are located within the Middle District. 28 U.S.C. § 2242. Venue is proper in the Middle District of Pennsylvania because a substantial portion of the relevant events occurred in the District and because several Respondents reside in the District. 28 U.S.C. § 1391(b), (e)(1).
PARTIES Petitioners
3. Petitioner Aaron Hope is a 32-year-old male native of Trinidad. Ex. 3 (Hope) at ¶ 1. He has been detained at York County Prison since September 15, 2019. Id. at ¶ 3. Mr. Hope has a series of respiratory problems—he has suffered from asthma since childhood, was hospitalized with pneumonia in 2012, and was diagnosed with sleep apnea in 2013—and was diagnosed with high blood pressure in 2017. Id. at ¶¶ 6-9. His underlying health conditions place him at high risk of severe illness or death if he contracts COVID-19.
4. Petitioner Iwan Rahardja is a 51-year-old a citizen of Indonesia who has lived in the U.S. for nearly 20 years. Ex. 4 (Rahardja) at ¶ 1. He has been detained by ICE at the York County Prison since February 27, 2020. Id. at ¶ 6. He
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suffers from diabetes and hypertension. Id. at ¶¶ 4, 5. These conditions place him at high risk of severe illness or death if he contracts, COVID-19.
5. Petitioner Jesus De La Pena is a 37-year-old man from Mexico who has lived in this country since age 6. Ex. 5 (De La Pena) at ¶ 1. He has been detained by ICE for a year at Pike County Correctional Center. Id. at ¶ 3. He suffers from severe asthma, hypertension and is over-weight. Id. at ¶¶ 4-7. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
6. Petitioner Rakibu Adam is a 34-year-old man from Ghana who has lived in the United States for approximately six years. Ex. 6 (Adam) ¶ 1. He has been detained by ICE at the York County Prison since October 2019. Id. at ¶ 3. He suffers from asthma and high blood pressure. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
7. Petitioner Duc Viet Lam is a 50-year-old man from Vietnam who has lived in the U.S. for 13 years. Ex. 7 (Viet Lam) at ¶ 1. He has been detained by ICE at the Pike County Correctional Center since January 2020. Id. at ¶ 3. He suffers from diabetes and high blood pressure. Id. at ¶ 4. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
8. Petitioner Yelena Mukhina is a 35-year-old woman from Ukraine. Ex. 8 (Mukhina) at ¶ 1. She has been detained at York County Prison since February 2020. Ms. Mukhina has asthma, a heart murmur, and hepatitis C. She has suffered
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with blood clots in her heart and also suffers from seizures when she is stressed. Id. at ¶¶ 5-8. Her underlying health conditions place her at high risk of severe illness or death if she contracts COVID-19.
9. Petitioner Nahom Gebretnisae is a 28-year-old man from Eritrea who has lived in the U.S. for more than 20 years. Ex. 9 (Gebretnisae) at ¶¶ 1, 2. He has been detained by ICE since February 18 at York County Prison. Id. at ¶ 3. He has for the past 13 years suffered from Crohn’s Disease and related arthritis and severe nerve and general pain, id. at ¶ 4, for which he takes many medications, id. at ¶¶ 511. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
10. Petitioner Ismail Muhammed is a 69-year-old man from Pakistan who has been in the U.S. since 2002. Ex. 10 (Ismael) at 1st un-numbered ¶ and ¶ 1. He has been held at the York County Prison since December 19, 2019. Id. at ¶ 1. He has recently lost about 25 pounds, suffered from asthma-type attacks, and is pre-diabetic. Id. at ¶¶ 3-8. His advanced age and medical condition place him at high risk of severe illness or death if he contracts COVID-19.
11. Glenn Weithers is a 59-year-old man from Guyana. He has lived in the United States for more than 32 years. Ex. 11 (Weithers) ¶ 1. He has been detained by ICE since January 2019. Id. at ¶ 4. Mr. Weithers suffers from emphysema and
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chronic obstructive pulmonary disease (COPD). Id. at ¶ 7. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
12. Petitioner Konstantin Bugarenko is 49-year-old man from Ukraine. He has lived in the United States for nearly 24 years as a lawful permanent resident. Ex. 12 (Bugarenko) ¶ 1. He has been detained by ICE since October 2017. Id. at ¶ 5. Mr. Bugarenko suffers from prediabetes, high blood pressure, and diverticulitis. Id. He also suffers re-occurring and debilitating pain in his feet that renders him temporarily unable to walk. Id. at ¶ 5. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19.
13. Petitioner Brisio Balderas-Dominguez is a 47-year-old man from Mexico who came to this country in 1991 after cartel members murdered his father, a judge. Ex. 13 (Balderas-Dominguez) at ¶¶ 1, 3. He has been detained by ICE for nearly three years at the Pike County Correctional Center. Id. at ¶ 5. He suffers from diabetes, atrial fibrillation and high blood pressure. Id. at ¶¶ 8, 9. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
14. Petitioner Viviana Ceballos is a 56-year-old woman from Argentina who has lived in the United States for over 29 years. Ex. 14 (Ceballos) ¶ 1. She became a lawful permanent resident in 1994. Id. She has been detained by ICE at York County Prison since March 2019. Id. at ¶ 7. She suffers from high blood
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pressure. Id. at ¶ 12. Her medical condition and age places her at a high risk of severe illness or death if she contracts COVID-19.
15. Petitioner Wilders Paul is a 32-yer old man from Haiti who has lived in the United States since he was three years old. Ex. 15 (Paul) ¶ 1. He is seeking adjustment of status through his wife. Id. He suffered a traumatic brain injury and suffers from seizures as well as headaches. Id. at ¶¶ 6,7. His medical condition places him at a high risk of severe illness or death if he contracts COVID-19.
16. Petitioner Marco Javier Ortiz Matos is a 32-year-old man from the Dominican Republic who has lived in this country for nearly 20 years. Ex. 16 (Ortiz Matos) at ¶¶ 1, 2. He has been detained by ICE since November 2019 at Pike County Correctional Center. Id. at ¶ 3. He suffers from diabetes. Id. at ¶¶ 4-7. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
17. Petitioner Alexander Alvaregna is a 46-year-old man from El Salvador. Ex. 17 (Alvaregna) at 1st unnumbered ¶ and ¶ 1. He has been detained at York County Prison since March 2, 2019. Id. at ¶ 5. He suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability due to a 2019 automobile accident. Id. at ¶¶ 7-11. His serious health conditions place him at high risk of severe illness or death if he contracts COVID-19.
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18. Petitioner Armando Avecilla is a 53-year-old native of Panama. Ex. 18 (Avecilla) at ¶ 1. He has been detained at Pike County Correctional Center since November 2019. Id. at ¶ 4. He suffers from diabetes. Id. at ¶ 6. His age and serious health conditions place him at high risk of severe illness or death if he contracts COVID-19.
19. Petitioner Coswin Ricardo Murray is a 45-year-old native of Barbados who has lived in this country for 33 years. Ex. 19 (Murray) at ¶¶ 1-2. His wife is suffering from advanced cancer. Id. at ¶ 2. He has been detained at Pike County Correctional Center since August 2019. Id. at ¶ 6. Mr. Murray suffers from asthma, for which Pike refuses to give him an inhaler. Id. at ¶¶ 7-8. His underlying medical condition places him at high risk of severe illness or death if he contracts COVID-19.
20. Petitioner Edwin Luis Crisostomo Rodriguez is a 31-year-old native of Dominican Republic who has lived in the U.S. since 2016. Ex. 20 (Rodriguez) ¶¶ 1,4. He has been detained since February 20, 2020, at the Pike County Correctional Center. Id. at ¶ 3. Mr. Crisostomo Rodriguez has suffered from asthma since childhood, id. at ¶ 7, which places him at high risk of severe illness or death if he contracts COVID-19.
21. Petitioner Eldon Bernard Briette is a 46-year-old man from Turks and Caicos who has lived in the U.S. for 35 years. Ex. 21 (Briette) at ¶ 1. He has been
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detained at the Pike County Correctional Center by ICE since November 12, 2019. Id. at ¶ 5. He suffers from diabetes, high blood pressure, high cholesterol, depression and anxiety. Id. at ¶¶ 6-9. His medical condition places him at high risk of severe illness or death if he contracts COVID-19.
22. Petitioner Dembo Sannoh is a 41-year-old man from Sierra Leone. Ex. 22 (Sannoh) ¶ 1. He has been detained by ICE at York County Prison since August 2019. He has diabetes, Hepatitis B, and a heart issue. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID19.
23. Petitioner Jesus Angel Juarez Pantoja is a 36-year-old man from Mexico who has lived in the U.S. since age 6. Ex. 23 (Juarez Pantoja) at ¶ 1. He has been detained by ICE at York County Prison since November 2019. Id. at ¶ 2. He suffers from asthma, sleep apnea and high blood pressure. Id. at ¶¶ 3-6. These conditions place him at high risk of severe illness or death if he contracts COVID19.
24. Petitioner Duckens Max Alder Francois is a 45-year-old man from Haiti. Ex. 24 (Francois) ¶ 1. He has been detained by ICE at Pike County Correctional Facility for six months. Id. at ¶ 2. He has hypertension, pain when he urinates, and swollen feet. Id. at ¶ 6. He also has latent tuberculosis. His body max index qualifies him as obese. He has an intellectual disability. His cumulative
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medical conditions place him at a high risk of severe illness or death if he contracts COVID-19. Respondents
25. Respondent Simona Flores-Lund is the Field Office Director for Enforcement and Removal Operations (“ERO”) in the Philadelphia Field Office of Immigration and Customs Enforcement (“ICE”), an agency within the U.S. Department of Homeland Security. ERO is a division of ICE that manages and oversees the immigration detention system. In her capacity as Field Director for ERO, Respondent Flores-Lund exercises control over and is a custodian of immigration detainees held at all of the correctional facilities in Pennsylvania that house ICE detainees, including the two at issue in this case, namely, the York County Prison and the Pike County Correctional Facility. At all times relevant to this Complaint, Respondent Flores-Lund was acting within the scope and course of her employment with ICE. She is sued in her official capacity.
26. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Respondent Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Respondent Albence is a legal custodian of Petitioners. At all times relevant to this complaint, Respondent Albence was acting within the scope and course of his position as an ICE official. He is sued in his official capacity.
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27. Respondent ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. ERO, a division within ICE, manages and oversees the immigration detention system. Respondent ICE is a legal custodian of Petitioners.
28. Respondent Chad Wolf is sued in his official capacity as the Acting Secretary for DHS. In this capacity, he has responsibility for the administration of immigration laws pursuant to 8 U.S.C. § 1103(a), has authority over ICE and its field offices, and has authority to order the release of Petitioners. At all times relevant to this complaint, Mr. Wolf was acting within the scope and course of his position as the Acting Secretary for DHS. He also is a legal custodian of Petitioners.
29. Respondent Clair Doll is the Warden of the York County Prison in York, Pennsylvania, where Petitioners Aaron Hope, Iwan Rahardja, Rakibu Adam, Yelena Mukhina, Nahom Gebretnisae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko, Viviana Ceballos, Wilders Paul, Alexander Alvarenga, Dembo Sannoh, and Jesus Angel Juarez Pantoja are detained. Respondent Doll is the immediate, physical custodian of these Petitioners. He is sued in his official capacity.
30. Respondent Craig A. Lowe is the Warden of the Pike County Correctional Facility in Lords Valley, Pennsylvania, where Petitioners Jesus De La
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Pena, Duc Viet Lam, Brisio Balderas-Dominguez, Marcos Javier Ortiz Matos, Armando Avecilla, Coswin Ricardo Murray, Edwin Luis Crisostomo Rodriguez, Eldon Bernard Briette, and Alger Francois are detained. Respondent Lowe is the immediate, physical custodian of these Petitioners. He is sued in his official capacity.
STATEMENT OF FACTS A. COVID-19 Poses A Grave and Elevated Risk of Harm, Including Serious
Illness or Death, to Persons Age 65 and Over and Those with Certain Medical Conditions. 31. COVID-19 is a disease caused by coronavirus that has reached pandemic status. According to the World Health Organization, as of April 3, more than 932,166 people have been diagnosed with COVID-19 in 25 countries or territories around the world and 46,764 have died as a result. Ex. 1, Apr. 3, 2020 Amon Decl. (Amon 1) at ¶ 5.2 The United States has the highest number of reported cases: 245,573 people have been diagnosed with the disease and 6,058 people have died thus far. Id. In Pennsylvania, there are at least 7,016 confirmed cases and 90 deaths. Id. The rates of infection are exponential, not linear, meaning that, for each person infected one day, the next day we should expect to see not one, but many more instances of infection. Id. Without effective public health interventions, CDC projections indicate about 200 million people in the United States could be infected
2 Petitioners rely on two declarations from Dr. Amon. Ex. 1 has been prepared for this lawsuit and is dated April 3. They also rely on Ex. 2, his March 24, 2020, declaration in Thakker.
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over the course of the pandemic, with as many as 1.5 million people dying from this infection. Ex. 3 (Golob) at ¶ 11.3 Outcomes from COVID-19 vary from asymptomatic infection to death. Individuals who are at low risk may experience mild symptoms, while high-risk individuals may suffer respiratory failure from the disease. Amon 1 at ¶ 6. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen will die. Golob at ¶ 4. In other words, more than one in every seven people in this high-risk group are likely to die, and an even higher percentage will suffer serious illness.
32. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. Id. at ¶ 9.
33. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. Id.
34. Emerging evidence also suggests that COVID-19 can trigger an overresponse of the immune system, further damaging tissues in a cytokine release
3 Dr. Golob’s declaration was prepared for Thakker v. Doll, but is still relevant to provide medical background about the virus.
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syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id.
35. Individuals aged 65 and older and those of any age with serious underlying medical conditions are at the highest risk of severe disease and death if they are infected with COVID-19. Amon 1 ¶ 9. According to the Centers for Disease Control and Prevention (CDC), these underlying conditions include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions “including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability[,]” and current or recent pregnancy. Id. at ¶ 8. The CDC also identifies individuals with a body mass index (BMI) greater than 40 to be at higher risk for severe illness. Id.
36. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected with the coronavirus. Id. at ¶ 6.
37. COVID-19 infects people who come into contact with respiratory droplets that contain the coronavirus. Id. at ¶ 33. Speech alone can produce these droplets. Id. at 34. Contact with particles that transmit the virus can occur at a
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distance of six feet. Id. at ¶ 33. It is also possible that an individual can become infected by touching a surface with the virus and then touching their mouths. Thus, the only known means of minimizing the risk of infection are social distancing and increased sanitization. Id. at ¶ 35.
38. Increasingly, research shows that social distancing is the primary means of risk mitigation. Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic. The CDC recommends a social distance of at least 6 feet to minimize the risk of spread. Id. at ¶¶ 33. 34; Golob at ¶ 10.
39. In response to this research, countries around the world have sought to make social distancing into public policy. In the United States, fifty states, seven territories, and the District of Columbia have all taken formal executive action to contain the outbreak. Id. at ¶ 36. These measures include stay at home orders that now cover at least 97 million people across the country. Id. On April 1, Governor Wolf extended the pre-existing county-by-county stay-at-home orders to cover the entire state of Pennsylvania. Id. The idea behind these actions is that, by “flattening the curve,” those most vulnerable will be least likely to become infected and, if they do, the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them. Id. at ¶ 26.
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B. Conditions in Pennsylvania’s Immigration Detention Facilities Increase the Risk of COVID-19 Infection. 40. The conditions in Pennsylvania’s immigrant detention facilities
contravene all medical and public health directives for risk mitigation. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Nor is such social distancing a possible solution, given the crowding of the facilities and the limitations on space.
41. At York, individuals are crowded into dorms of around 60 people. Juarez Pantoja at ¶ 8. They sleep in bunk beds only about 2 feet apart. Muhammed at ¶ 10. Ventilation in the facility is poor. Paul at ¶ 12. Plaintiffs are forced to move within these spaces without attention to necessary social distancing. Id. at ¶ 10.
42. In Pike, individuals within blocks are forced into small cells that they share with two other people, with two people sleeping on a bunk bed and one person in a bed just two or three feet away. Avecilla at ¶ 8. A toilet and sink that the detained individuals must share further crowds the cell, making it impossible to maintain 6 feet of distance. Id.
43. Other aspects of detention also preclude the CDC-recommended social distancing, and increase transmission opportunities. Shared use of common facilities generates further opportunities for infection. Toilets, sinks, and showers are shared, without disinfection between use. Amon 1 ¶ 41. Mass food preparation and distribution across the facility presents a further locus for virus transmission. Id.
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44. At York, detained individuals eat at communal tables for four so small that the edges of the trays touch the end of the table. Juarez Pantoja at ¶ 10. Social distancing is impossible in this small space.
45. Nor is there adequate space in bathrooms: there are four toilets and two urinals and six showers for a unit of nearly sixty. Id. at ¶ 8. Because sanitization supplies are not provided, detained individuals cannot maintain proper hygiene. Detainees are given only one bar of soap a week, which they must bring with them to the bathroom. Alvarenga at ¶ 15. They are not provided hand sanitizer. Id.; Rahardja at ¶ 12. They also must clean the bathrooms with a cleaning material that likely has no alcohol or bleach. Alvarenga at ¶ 15. When one individual asked for disinfectant, he was denied. Hope at ¶ 12. Detainees have limited access to running water, and must use bathroom sinks that are for hand washing and brushing teeth to access water for food they prepare in their dorms. Ruiz at ¶ 5.
46. Additional common surfaces, including phones and tablets, create potential sources of infection. Because there are a limited number of tablets and phones, the only means to communicate with loved ones and counsel is to share these devices. Hope at ¶ 10. Yet the facilities limit access to proper disinfecting products to clean them between use. Id. at ¶ 12. Detainees resort to using toilet paper and towels to try to keep themselves safe from infectious spread. Alvarenga at ¶ 15.
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47. At Pike, an entire unit of around 50 people shares a set of four showers, with an average of 12 people sharing each shower when all showers are functional. Avecilla at ¶ 11. Ventilation in the facility is poor. Id. at ¶ 13; Briette at ¶ 14. As at York, phones and tablets at Pike are shared among many detained individuals within each block, yet the supplies allotted to clean are diluted and insufficient. Briette at ¶ 15.
48. While Pike has instituted a lockdown in response to COVID-19, it is still insufficient to protect detainees. Groups of 12 men are let out of their cells together for a short time every day and clamber to use the shared tablets and showers. De La Pena at ¶ 10. Detainees are still working, including Plaintiff De La Pena, who works nights cleaning the floors of the facility. Id.
49. These crowded conditions, in both sleeping and social areas prohibit effective social distancing necessary to protect against transmission. Shared objects (bathrooms, sinks, etc.) maximize the likelihood that COVID-19 will spread rapidly across the facilities. Amon 1 at ¶ 48. These conditions create serious risk that vulnerable detainees will become infected.
50. Similar viral spread has already occurred at other detention facilities. In New York City, for example, where the testing began earlier than in Pennsylvania, jails have become an epicenter of infectious spread. As of Tuesday, March 31, 141 staff and 180 individuals in custody had tested positive at Riker’s Island and city
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jails in New York City. The Legal Aid Society in New York recently reported that the infection rate for COVID-19 at local jails is more than seven times higher than the rate citywide and 87 times higher than the country at large. Amon 1 ¶ 51.
51. There is growing evidence of contagion and inadequate medical care within the facilities where Plaintiffs are detained. Even before quarantines, plaintiffs from each facility reported having issues receiving adequate medical care. See Juarez Pantoja at ¶5. Rahardja at ¶ 8; Briette at ¶ 10.
52. Since COVID-19 has become a known public health threat, the facilities have failed to take precautions. Not only are detained individuals not provided with masks to protect themselves, but the workers who come in and out of units to serve food also do not wear masks. Alvarenga at ¶17; Matos at ¶¶ 12-13. Staff also move between units without masks. Juarez Pantoja at ¶ 11. Even medical workers sometimes do not wear masks. Avecilla at ¶ 14. These multiple points of contact provide multiple potential vectors for infection. Indeed, Plaintiffs are concerned that guards may be infected and may be spreading the illness through the facility. Avecilla at ¶17.
53. Even where measures are taken, they are insufficient to prevent spread across the facility. For example, at York, all individuals housed in a single unit are put on quarantine within the same dorms in which they are unable to practice social distancing. Mukhina at ¶ 11; Paul at ¶ 10. Because no one is tested to determine who
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is actually infected and who is not, this kind of quarantine facilitates transmission to non-infected individuals within the unit. Paul at ¶ 12; Alvarenga at ¶ 19; see also Amon 1 ¶ 61. In one instance, an individual was removed, but his bunk was not cleaned and his bunk mate continues to sleep in this potentially contaminated space. Rahardja at ¶ 10. Temperature checks are infrequent, with one individual reporting a single test about a week and a half ago. Juarez Pantoja at ¶ 11; see also Alvarenga at ¶ 20. In the women’s unit, multiple individuals under quarantine have reported symptoms, but those who are not are left without protection. Muhkina at ¶ 11. The women’s unit has also been unable to access utilities like the laundry, which makes the space less hygienic. Id.
54. Access to medical treatment and medication has also been delayed or inconsistent at York, which is especially troubling for detainees who take medications that should be given at evenly spaced intervals. Paul at ¶¶ 11, 13. Detainees’ quarantined blocks have also had their immigration hearings or custody reviews rescheduled, which may lengthen their detention. Mukhina at ¶ 12; Paul at ¶ 13; Ceballos at ¶ 9.
55. At Pike, two individuals reported COVID-19 symptoms, but were being left in the cell without care, risking their health and the health of others still in the unit. Avecilla at ¶ 15. Pike is also keeping quarantined detainees in the same block as other detainees, including the working block, which houses 67 men. De La
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Pena at ¶ 14. Individuals in cells with others who were removed after presenting symptoms of COVID-19 report that the facility did not even test them. Crisostomo Rodriguez at ¶ 8. Detainees housed in the same block as those in quarantine are not provided masks. De La Pena ¶ 13. As at York, cohorting in this way could mean disease transmission will be facilitated rather than prevented. Amon 1 ¶ 61.
56. While some individuals have reported temperature checks, no plaintiffs have observed or heard word of medical staff administering tests to anyone reporting symptoms. De La Pena ¶13. In fact, Pike denied a Petitioner’s request to be tested after he his cellmates exhibited symptoms and were removed from his cell. Crisotomo Rodriguez at ¶ 8. Because of asymptomatic and pre-symptomatic transmission, temperature checks alone are insufficient to identify infected individuals who may be infected and infecting others. Amon 1 ¶ 50(a).
57. The failure to perform tests of staff who have ongoing community contacts presents a daily risk of introduction of the virus into the detention facility. Id. at ¶ 50(d). The entire state of Pennsylvania is reported to have “widespread” community transmission, and therefore all staff are potential vectors of the virus. Id. at ¶ 50(b). The possibility of asymptomatic transmission means that monitoring staff for fever is also inadequate for identifying all who may be infected and preventing transmission. Id. at ¶ 50(a). This is also true because not all individuals infected with COVID-19 report fever in early stages of infection. Ex. 2 (Amon Decl.) at ¶ 42.
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58. A lack of proven cases of COVID-19 where there is little to no testing is functionally meaningless for determining if there is a risk for COVID-19 transmission in a community or institution. Golob at ¶ 7. In other jurisdictions where testing has been made available to correctional officers who enter and leave facilities regularly, the rates of infection are high. Amon 1 at ¶¶ 51, 52.
59. At Pike, one inmate has tested positive for COVID-19 and is currently hospitalized, and three staff members, and one contract employee have tested positive for COVID-19.4 Many others have witnessed cell mates and people in their unit exhibiting symptoms, sometimes without any attention from the correctional officers. Avecilla at ¶¶ 15, 16. York’s quarantine suggests that the virus may have infected that facility as well.
60. Once introduced, it will be impossible to stop the spread of the virus within the facility, where social distancing measures are impossible. CDC guidance specifically recommends implementing social distancing strategies to increase the physical space between incarcerated and detained persons, “ideally 6 feet between all individuals, regardless of the presence of symptoms,” but Respondents continue to hold Plaintiffs in conditions where they sleep an arm’s reach away from each other
4 Coronavirus COVID-19 Updates from the Pike County Commissioners, April 2, 2020 Update, https://news.pikepa.org/post/2020/03/09/COVID-19-Update (last visited April 3, 2020)
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in a room full of people with whom they share bathrooms and eating spaces. Weithers at ¶ 12; Alvarenga at ¶ 13; Avecilla at ¶ 8. see also Amon 1 at ¶¶ 42.
61. Even were the Respondents to implement the specific ICE guidance for cohorting stringently across the facilities—which they have not done—these actions will not prevent the introduction of the virus and its spread within the facility because of the potential for asymptomatic transmission from facility staff or other individuals in ICE custody. Id. at ¶¶ 61, 62. Moreover, the CDC guidance makes clear that cohorting must separate those suspected of having the virus from those who are not, a determination that can only be made with widespread testing. Id. at ¶¶ 59, 61. Yet Respondents fail to follow this protocol. There is no evidence that Respondents are conducting widespread testing. Without knowing who is infected, cohorts threaten to facilitate transmission. Amon 1 at ¶ 61. The size of the cohort that Respondents used at the Pike facility—a block of 48 men—threatens to expose many individuals to the virus. Avecilla at ¶¶ 8, 15, 16; Crisostomo Rodriguez at ¶¶ 10; 11; see also De La Pena at ¶ 9 (describing how his block has 67 men). York has a similar practice, “cohorting” the entire block, which is about 60 people. Alvarenga at ¶ 19; Mukhina at ¶ 11. Given that York’s housing is dormitory style and open, this practice puts the entire block is at risk of exposure.
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C. Continued ICE Detention is Unsafe for Those Most Vulnerable to COVID-19. 62. Without a vaccine or cure for COVID-19, mitigating the risk of
contracting virus is the only known way to protect those who are most vulnerable to serious harm from infection. Golob at ¶ 10; Amon 1 at ¶¶ 6, 35.
63. Because the risk of infection is at its zenith in detention centers where social distancing measures are impossible to implement, where people share common spaces that are not regularly sanitized, and where individuals are regularly exposed to potential vectors of infection, public health experts with experience in detention and correctional settings have recommended release of vulnerable individuals from custody. Golob at ¶ 14; Amon 1 at ¶¶ 70, 73.
64. High risk individuals who become infected will not receive adequate treatment. Immigration detention facilities lack adequate medical care infrastructure to address the strain of an outbreak. Amon 1 at ¶¶ 54, 64, 65. As a result, detained individuals who are age 65 and over or are any age with medical conditions that put them at high risk of illness if infected by COVID-19 are at grave risk of severe illness and death and should be released.
65. If they are not released before the virus spreads through the prison, ill detainees will likely be unable to access necessary medical care, including positive pressure ventilation and, in extreme cases, extracorporeal mechanical oxygenation. See Golob at ¶ 8. This is because an outbreak among detainees and corrections staff
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will strain the limited medical infrastructure in the rural counties in which these detention facilities are located. Once infection spreads throughout the detention center, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will die. Amon 1 at ¶ 65. Thus, high risk individuals should be released from detention centers before it is too late.
D. Plaintiffs Must Be Released from ICE Custody Because They Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19. 66. Plaintiffs in this case are all individuals who are especially vulnerable
to serious illness and death if they are infected with COVID-19, but ICE nonetheless continues to detain at York County Prison and Pike County Correctional Facility, while they await the adjudication of their immigration cases.
67. Plaintiff Aaron Hope is a 32-year-old male native of Trinidad. Hope at ¶ 1. He is eligible to adjust his status through his U.S. citizen wife. Id. at ¶ 2. One brother is also a citizen and his other brother and mother are legal permanent residents. Id. He has been detained at the York County Prison since September 15, 2019. Id. at ¶ 3.
68. Mr. Hope has suffered from asthma since childhood, was hospitalized with pneumonia in 2012, was diagnosed with sleep apnea in 2013, and was
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diagnosed with high blood pressure in 2017. Id. at ¶¶ 6-9 His underlying health conditions place him at high risk of severe illness or death if he contracts COVID19. Mr. Hope’s serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 11.
69. On March 27, 2019, Mr. Hope joined in a hunger strike at York County Prison to protest the unhygienic conditions and lack of appropriate precautions to prevent the spread of COVID-19. Id. at ¶¶ 10-13. The next day, March 28, correctional officers told Mr. Hope that they believed he was a leader of the strike and therefore was being put into segregation. Id. at ¶ 14. In the process of being moved to segregation, unidentified officers severely assaulted him, stripped him naked, and left him naked, badly bruised and handcuffed on the floor of the segregation cell. Id. at ¶¶ 12-19. He was denied repeated requests for medical treatment until Tuesday, April 1, when the prison finally transported him to a local hospital emergency room. Id.
70. Plaintiff Iwan Rahardja is a 51-year-old a citizen of Indonesia who has lived in the U.S. for nearly 20 years. Rahardja ¶ 1. He is married to a U.S. citizen and has two daughters, who are legal permanent residents. Id. at ¶ 3. He was granted asylum, but the finding was overturned on appeal. Id. at ¶ 2. He has been attempting to adjust his status based on his marriage to a U.S. citizen wife. Mr. Rahardja has
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been detained by ICE at the York County Prison since February 27, 2020. Id. at ¶ 6. He has no criminal record.
71. Mr. Rahardja suffers from diabetes and hypertension, for which he has been prescribed medications that he continues to take while in detention. Id. at ¶¶ 4. His medical conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 12.
72. Plaintiff Jesus De La Pena is a 37-year-old man from Mexico who has lived in this country since age 6. De La Pena at ¶ 1. He is married and has four children, ranging in age from 5 to 18. He has been detained for a year by ICE at Pike County Correctional Center. Id. at ¶ 3. He was granted non-lawful permanent resident cancellation of removal in October 2019, but remains detained pending ICE’s appeal. Id.
73. Mr. De La Pena suffers from severe asthma and hypertension. Id. at ¶ 5. He is also over-weight, i.e., 5’ 7” tall and 290 pounds. Id. He is prescribed about 12 pills per day. Id. at ¶ 7. Several months ago Pike took him to the hospital with bad chest pains and an abnormal EKG. Id. at ¶ 6. His immigration lawyer recently asked ICE to release him due to health issues, but on March 31 ICE officials refused. Id. at ¶ 8. His medical conditions and his obesity place him at high risk for severe disease and death if he contracts COVID-19. Amon 1 at ¶ 13.
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74. Plaintiff Rakibu Adam is a 34-year-old man from Ghana who has lived in the United States since 2014. Adam ¶ 1. He is married with two U.S. citizen children (ages 2 and 5). He recently had his merits hearing and is awaiting a decision in his claim for asylum. Mr. Adam has been detained by ICE at York County Prison since October 2019. Id. at ¶ 3. ICE picked him up after his first court hearing for retail theft. Id. at ¶ 4.
75. Mr. Adam suffers from asthma and high blood pressure. Id. at ¶ 6. He takes daily medication for his high blood pressure and has recently had trouble breathing. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 14.
76. Plaintiff Duc Viet Lam is a 50-year-old man from Vietnam who has lived in the U.S. for 13 years. Viet Lam at ¶¶ 1. He is married to a lawful permanent resident and has filed an 1-130 petition to adjust his status, thereby staying his deportation order. Id. at ¶ 2.
77. Mr. Viet Lam has been detained by ICE at the Pike County Correctional Center since January 2020. Id. at ¶ 3. ICE picked him up after he received probation for a disorderly conduct summary offense, for which he received probation. Id. at ¶ 2. That is his only offense. Id.
78. Mr. Viet Lam suffers from diabetes and high blood pressure, for which he receives medications. Id. at ¶ 4. Several years ago he was hospitalized for three
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days because of the high blood pressure. Id. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 15.
79. Plaintiff Yelena Mukhina is a 35-year-old woman from Ukraine who has been in this country for 14 years. Mukhina at ¶ 1. She is a lawful permanent resident and has a 10-year-old U.S. citizen daughter. Id. at ¶ 2. Her fiancé is also a U.S. citizen. Id. Ms. Mukhina has been detained by ICE at York County Prison since February 2020. Id. at ¶ 3. She is seeking Lawful Permanent Resident Cancellation of Removal. Because her block is on quarantine, her immigration hearing was rescheduled from April 1, 2020 to May 12, 2020. Id. at ¶ 13.
80. Ms. Mukhina has suffered from asthma since 2010. Id. at ¶ 5. She is unable to sleep because of how bad her breathing problems are. Id. at ¶ 9. She has hepatitis C, suffers from seizures, has suffered from blood clots in her heart, and has a heart murmur. Id. at ¶ 7-9. Her multiple health issues place her at high risk of severe illness or death if she contracts COVID-19. Amon 1 at ¶ 16.
81. Plaintiff Nahom Gebretnisae is a 28-year-old man from the Eritrea who has lived in the U.S. for more than 20 years. Gebretnisae at ¶¶ 1, 2. His entire family – elderly parents, ages 79 and 91 and four older siblings – arrived in 1998 and now are U.S. citizens. Id. at ¶ 2. He has been detained by ICE since February 18, 2020, at York County Prison. Id. at ¶ 3.
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82. Mr. Gebretnisae has for the past 13 years suffered from Crohn’s Disease and related arthritis and severe nerve and general pain. Id. at ¶ 4. He is prescribed many medications. Id. at ¶¶ 5-11. Mr. Gebretnisae cannot alleviate his symptoms with the limited food choices available in the prison, which has caused him to suffer severe cramps, diarrhea, arthritis and pain. Id. at ¶¶ 9-10. Because he taking immunosuppressants, he may be immunocompromised and at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 17.
83. Plaintiff Ismail Muhammed is a 69-year-old man from Pakistan who has been in the U.S. since 2002. Ismael at ¶¶ 1st un-numbered and 1. Mr. Ismael has been held at the York County Prison since December 19, 2019. Id. at ¶ 1.
84. Mr. Ismael has recently lost about 25 pounds, suffered from asthmatype attacks, and is pre-diabetic. Id. at ¶¶ 3-8. In recent months he has grown increasingly frail. Id. His advanced age puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 18. His prediabetes and breathing difficulties could also put him at increased risk and complicate treatment. Id.
85. Plaintiff Glenn Weithers is a 49-year-old man from Guyana who has lived in the United States for more than 32 years as a lawful permanent resident. Weithers at ¶ 1. His brother, sister, children, and grandchildren are all U.S. citizens. Id. at ¶ 2. Mr. Weithers has been detained by ICE at York County Prison since January 2019. Id. ¶ 4. He currently has a motion to reopen pending. Id.
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86. Mr. Weithers has emphysema and chronic obstructive pulmonary disease. Id. at ¶ 7. He has had difficulty receiving adequate treatment and has recently been having breathing issues at night. Id. at ¶ 9. His lung-related illness places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 19.
87. Plaintiff Konstantin Bugarenko is a 49-year-old man from Ukraine. Bugarenko at ¶ 1. He has lived in the United States for nearly 24 years as a lawful permanent resident. Id. He is married to a U.S. citizen and they have five U.S. citizen children together. Id. at ¶ 2. Mr. Bugarenko has been detained by ICE at York County Prison since October 2017. Id. at ¶ 5. He is currently seeking a rehearing in his case before the U.S. Third Circuit Court of Appeals. Id. at ¶ 4.
88. Mr. Bugarenko suffers from prediabetes, high blood pressure, and diverticulitis. Id. at ¶ 5. He also suffers re-occurring and debilitating pain in his feet that renders him temporarily unable to walk. Id. at ¶ 5. His medical conditions could put him at a heightened risk of complications if he contracts COVID-19. Amon 1 at ¶ 20.
89. Plaintiff Brisio Balderas-Dominguez is a 47-year-old man from Mexico who came to this country in 1991 after cartel members murdered his father, a judge. Balderas-Dominguez at ¶¶ 1, 3. He is married to a U.S. citizen woman and has four U.S. citizen children. Id. at ¶ 4. Mr. Balderas-Dominguez has been detained
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by ICE for nearly three years at the Pike County Correctional Center. Id. at ¶ 5. His application for relief under the Convention Against Torture (“CAT”) is pending before the U.S. Third Circuit Court of Appeals, which issued an order staying his deportation. Id. at ¶ 6.
90. Mr. Balderas-Dominguez suffers from diabetes, atrial fibrillation, and high blood pressure, for which he takes many medications. Id. at ¶¶ 8, 9. His medical conditions place him at high risk of severe illness or death if he contracts COVID19. Amon 1 at ¶ 21.
91. Plaintiff Viviana Ceballos is a 56-year-old woman from Argentina who has lived in the United States for over 29 years. Ceballos ¶ 3. She became a lawful permanent resident in 1994. Id. She has been detained by ICE at York County Prison since March 2019. Id. at ¶ 7.
92. Ms. Cabellos is awaiting a decision from the Board of Immigration Appeals to reopen her case on the grounds that she is now eligible for Cancellation of Removal after vacating a conviction for stolen property under the Post Conviction Relief Act (PCRA). Id. at ¶¶ 5, 6. DHS has indicated they to not oppose her Motion to Reopen. Id. at 6.
93. On April 2, 2020, Ms. Cabellos’s attorney received an email from an ICE officer informing her that Ms. Cabello’s parole redetermination hearing was postponed because she is in a cohorted dorm. Id. at ¶ 7.
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94. Ms. Cabellos has high blood pressure, for which she receives medication. Id. at ¶ 12. Her high blood pressure and age likely place her at a heightened risk of complications from s COVID-19. Amon 1 at ¶ 22.
95. Plaintiff Wilders Paul is a 32-year-old man from Haiti. Wilders at ¶ 1. He has lived in the United States since he was three years old. Id. at ¶ 1. He is married to a U.S. citizen and they have two children together—a son (age 13) and daughter (age 7). Id. He has been detained by ICE since December 28, 2019. Id. at ¶ 3. Mr. Paul is seeking adjustment of status through his U.S. citizen wife before EOIR. Id. His immigration lawyer recently asked ICE to release him due to health issues, but on March 31 they refused. Id. at ¶ 8.
96. As a result of a traumatic brain injury, Mr. Paul suffers from seizures and migraines. Id. at ¶¶ 6, 7. He takes the anti-seizure medication Keppra twice a day. Id. at ¶ 7. Prior to his detention, he also took migraine medication, but York is not providing him with this medication. Id. at ¶¶ 6, 7. His seizures likely put him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 23.
97. Plaintiff Marco Javier Ortiz Matos is a 32-year-old man from the Dominican Republic who has lived in this country for nearly 20 years. Ortiz Matos at ¶¶ 1, 2. He has been detained by ICE since November 2019 at Pike County Correctional Center. Id. at ¶ 3.
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98. Mr. Ortiz Matos suffers from diabetes, for which he takes two medications. Id. at ¶¶ 4-7. He also has stomach ulcers. Id. His diabetes places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 24.
99. Plaintiff Alexander Alvaregna is a 46-year-old man from El Salvador. Alvaregna at 1st unnumbered ¶ and ¶ 1. He has lived in the U.S. since 1984, when he was age 9. Id. at ¶ 1. All of his siblings live in the U.S. Id. He has three children – age 13, 25 and 29 – all of whom are U.S. citizens. Id. at ¶¶ 1, 4. He is very close to all of the aforementioned family members. Id. at ¶ 4.
100. Mr. Alvaregna was granted Temporary Protected Status in 1991, which then adjusted to Lawful Permanent Resident status in 1993. Id. at ¶ 2. Mr. Alvaregna has been detained at York County Prison since March 2, 2019. Id. at ¶ 5. An appeal of his denial of relief under the Convention Against Torture is pending before the BIA. Id. at ¶ 6.
101. Mr. Alvaregna suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability due to a 2019 accident. Id. at ¶¶ 7-11. He is prescribed and takes medications for all of the foregoing medical conditions. Id. His serious health conditions place him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 25.
102. Plaintiff Armando Avecilla is a 53-year-old man from Panama. Avecilla at ¶ 1. He fled Panama after he was shot multiple times in the head, which
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put him into a coma for a month, blinded one eye, and injured his jaw so badly he has difficulty eating. Id. at ¶ 7. Mr. Avecila has been detained at Pike County Correctional Center since November 2019. Id. at ¶ 4. His appeal of his denial of asylum by the immigration court will be filed shortly by his immigration lawyer with the BIA. Id. at ¶ 2.
103. Mr. Avecilla has suffered from diabetes since 2010, for which he continues to receive daily medication. Id. at ¶ 6. He also suffers from partial disability caused by the gunshot wounds to his head. Id. at ¶ 7. His diabetes puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 26.
104. Plaintiff Coswin Ricardo Murray is a 45-year-old man from Barbados who has lived in this country for 33 years. Murray at ¶¶ 1-2. He is married and has four children, between the ages of 11 and 22, all of whom are U.S. citizens. Id. at ¶ 2. His wife is suffering from cancer—she has already had one kidney removed and the disease has spread to her bones—and he desperately wants to be with her. Id. at ¶¶ 2, 5, 6. ICE has detained Mr. Murray at Pike County Correctional Center since August 2019. Id. at ¶¶ 4, 6. Mr. Murray is in the process of trying to adjust his status based on his marriage to a U.S. citizen. Id. at ¶ 3.
105. Mr. Murray suffers from asthma, for which Pike refuses to give him an inhaler. Id. at ¶¶ 7-8. Mr. Murray’s lung-related illness places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 27.
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106. Plaintiff Edwin Luis Crisostomo Rodriguez is a 31-year-old man from the Dominican Republic who has lived in the U.S. since 2016. Rodriguez at ¶¶ 1, 3. He is married to a lawful permanent resident, and has two step daughters. Id. at ¶ 4. Mr. Cristomo Rodriguez has been detained since February 20, 2020, at the Pike County Correctional Center. Id. at ¶ 3.
107. Mr. Crisostomo Rodriguez has suffered from asthma since childhood, id. at ¶ 7, which places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 28.
108. Plaintiff Eldon Bernard Briette is a 46-year-old man from Turks and Caicos who has lived in the U.S. for 35 years, since age 12. Briette at ¶¶ 1, 4. He is engaged to a U.S. citizen and has two U.S. citizen children. Id. at ¶ 4. Mr. Briette has been detained at the Pike County Correctional Center by ICE since November 12, 2019. Id. at ¶ 5. His case seeking withholding of removal is pending before the BIA. Id. at ¶ 2.
109. Mr. Briette suffers from diabetes, high blood pressure, high cholesterol, depression and anxiety. Id. at ¶¶ 6-9. He takes medications for all of these conditions, probably 8-9 pills a day, including now at Pike. Id. For the past two months, he has coughed heavily and fever-related symptoms. Id. at ¶ 10. His medical condition likely put him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 29.
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110. Plaintiff Dembo Sannoh is a 41-year-old man from Sierra Leone. Sannoh at ¶ 1. He fled Sierra Leone after his parents were killed during the civil war and arrived to the United States in 2002. Id. at ¶ 2. He was granted asylum and in 2013 became a lawful permanent resident. Id. at ¶ 3. Mr. Sannoh has been detained by ICE at York County Prison since August 2019. His case is currently before the Board of Immigration Appeals (BIA). Id. at ¶ 3.
111. He has diabetes, hepatitis C, and an unidentified heart condition. Id. at ¶ 6. His medical condition places him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 30.
112. Plaintiff Jesus Angel Juarez Pantoja is a 36-year-old man from Mexico who has lived in the U.S. since age 6. Juarez Pantoja at ¶ 1. He is married and has three children, ages 8, 10 and 19, as well as a 3-month-old grandson. Id. One of his daughters suffers from depression, which has been exacerbated by his detention. Id. at 16. Mr. Juarez Pantoja has been detained by ICE at York County Prison since November 2019. Id. at ¶ 2. His immigration appeal is pending before the BIA. Id. at ¶ 14.
113. He suffers from asthma, sleep apnea and high blood pressure. Id. at ¶¶ 3-6. He is prescribed an inhaler for the asthma, but York does not allow him to keep it; rather he needs to let a correctional officer know he needs it and they will bring him to the medical unit to use the inhaler. Id. at ¶ 3. York recently placed him in
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disciplinary status for suspected organizing activity around a hunger strike to protest conditions and treatment involving COVID-19, id. at ¶ 7, but being alone in a cell raises increased health concerns because he may not be able to summon help in the event he experiences asthma-related breathing problems, id. at ¶ 15. His asthma puts him at high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 31. His other health issues, including high blood pressure and obesity, also put him at risk for possible complications in his treatment should be contract COVID-19. Id.
114. Plaintiff Duckens Max Adler Francois 45-year-old man from Haiti who has lived in the United States for 30 years. Francois at ¶ 1. Mr. Francois has been detained by ICE at Pike County Correctional Facility for six months. Id. at ¶ 2. He is seeking Lawful Permanent Resident Cancellation of Removal and is awaiting his merits hearing. Hubbard at ¶ 4.
115. Mr. Francois has hypertension, pain when he urinates, and swollen feet. Francois at ¶ 6. He is awaiting a medical appointment for further testing and diagnosis. Id. He also has an intellectual disability and is obese. Hubbard at ¶ 5. He also has latent tuberculosis. Id. His medical conditions likely puts him at a high risk of severe illness or death if he contracts COVID-19. Amon 1 at ¶ 32.
E. ICE Continues to Expose Plaintiffs to Dangerous Conditions of Confinement Despite Being Advised of These Dangers
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116. Public health measures across the country, including in Pennsylvania, demonstrate the widespread recognition that the only clinically recommended course of action to protect individuals who have medical conditions that make them vulnerable to serious illness or death from COVID-19 is to practice social distancing and increased hygiene. Only these practices mitigate the risk of contracting this novel virus that has no cure. Golob at ¶ 10; Amon 1 at ¶¶ 6, 35.
117. CDC guidance for detention centers and prisons specifically recommends implementing social distancing strategies to increase the physical space between people, “ideally 6 feet between all individuals, regardless of the presence of symptoms.” Id. at ¶ 42.
118. None of the ICE facilities are following CDC guidance in relation to social distancing, putting all detainees, and especially those at high risk of severe disease and death, in jeopardy. Id. at ¶ 48. Plaintiffs are forced to sleep in crowded dorms that do not allow six feet of distance from each other, Juarez Pantoja at ¶ 8; Muhammed at ¶ 10,5 or are housed three to an eight-foot-by-
5 See also Thakker Dkt. 2-10 (Pratt Decl.) at ¶ 7; Thakker Dkt. 2-4 (Idowu Decl.) at ¶ 11; Thakker Dkt. 2-11 (Augustin Decl.) at ¶16.
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twelve-foot cell, with two people sharing a bunk bed, and with a shared toilet and sink between all three. Avecilla at ¶ 8.6 119. Nor will the policy of “cohorting” prevent the spread of the virus to Plaintiffs. Contrary to CDC recommendations to cohort individually, ICE cohorts many people together, between 30 to 50 to a room or triple celled at Pike and 60 to a room at York. Even if ICE is to implement this policy at the facilities, asymptomatic transmission will allow individuals to infect others before showing the signs that would trigger the cohorting measures, and will force non-infected individual into small cohorted spaces with infected individuals. Amon 1 at ¶ 61. 120. CDC guidance on correctional and detention facilities emphasizes that there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff and transfer of incarcerated/detained persons. Amon 1 at ¶ 66. ICE claims to be following CDC guidance at its facilities. Id. However, the ICE action plan only provides for verbal screening and temperature checks. But asymptomatic transmission of the virus means that monitoring fever of staff or detainees is inadequate for identifying all who may be infected and preventing transmission. Id. at ¶

6 See also Thakker Dkt. 2-3 (Thakker Decl.) at ¶ 11 40

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50(b). Given the shortage of COVID-19 testing in the United States, it is likely that detention facilities are and will continue to be unable to conduct aggressive, widespread testing to identify all positive cases of COVID-19. Id. at 50(d). 121. Respondents also have failed to implement their own alleged protocol for isolation. The protocol states: “ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19.” Id. at ¶ 60. Plaintiffs’ declarations make clear that these procedures are not being implemented. But even if they were, they would be insufficient to address infectious spread. Given the rate of spread in detention facilities, there will be many more than people with COVID-19 than there are isolation rooms. Id. Limited infrastructure will thus mean that ICE will not be able to comply with this protocol and will therefore expose noninfected individuals held in quarantine with infected individuals. 122. Respondents also expose Plaintiffs to unsanitary conditions that increase the risk of infection and spread. They must use common toilets and showers, Avecilla at ¶ 8, which individual detainees clean for a dollar a day. They have no control over their soap rations or access to other sanitization products. Alvarenga at ¶ 15.
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123. Respondents have been aware of the serious hygiene issues at their facilities, including York. Stakeholders sent a detailed letter to Ms. FloresLund and Warden Doll in July 2019 detailing various deficiencies in hygiene, sanitation and medical care, and thus these officials are or should have been aware of these serious problems at York County Prison. See Thakker Dkt. 219 (Ruiz Decl.) at ¶ 3. To date, York Country Prison has not implemented any changes. Id. at ¶ 12; Ruiz at ¶ 12.
124. On March 13, 2020, as infection rates began to increase in Pennsylvania at an alarming rate, the American Civil Liberties Foundation (ACLU) of Pennsylvania sent a letter to Defendant Flores-Lund, and other agency officials, alerting them to the high risk of COVID-19 infection in detention facilities and the dangerous health outcomes of an infection for vulnerable individuals. Thakker Dkt. 2-20.
125. Neither Ms. Flores-Lund nor any other agency official has responded to the letter.
126. CDC guidance recognizes that incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced. Amon 1 at ¶ 66. All of the risks are present here, where Plaintiffs cannot practice social distancing, share common spaces and touch common surfaces, and where new individuals and staff come into the facility each day.
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127. Yet ICE continues to detain Plaintiffs, and many other medically vulnerable people, in contradiction of medical advice. Even if ICE has implemented the screening measures the agency claims to be implementing, which they have not, these measures are insufficient to prevent introduction of the virus into a setting where it will spread like wildfire.
128. Respondents do not have the capability to put out this fire with the scarcity of tests and the limited physical infrastructure in which they can neither isolate nor distance individuals from each other.
LEGAL FRAMEWORK A. Immigrant Detainees are Entitled to Constitutional Due Process Protections Against Exposure to Infectious Disease. 129. Immigrant detainees, even those with prior criminal convictions, are
civil detainees entitled to the same Fifth and Fourteenth Amendment due process protections as any other pretrial detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); E. D. v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019).7 130. Due process rights for civil detainees mean that they are “entitled to more considerate treatment and conditions of confinement than criminals
7 The Fifth Amendment requires the federal Respondent-Respondents to provide due process protections to Plaintiffs. The Fourteenth Amendment requires the state RespondentRespondents to provide the same due process.
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whose conditions of confinement are designed to punish.” Aruanno v. Johnson, 683 F. App’x 172, 175 (3d Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). 131. “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” Sharkey, 928 F.3d at 307 (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). Put differently, to assess whether a condition constitutes impermissible punishment, “[w]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard, 538 F.3d at 232. Conditions must be assessed in their totality. Id. at 233. 132. The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it “fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” for those in custody. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189,
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199-200 (1989); see also Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999, 1008 (3d Cir. 1983) (explaining that conditions are cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” such as the “necessity” of “habitable shelter,” as measured under “contemporary standards of decency”). 133. Courts in this Circuit have repeatedly found such “unsanitary, unsafe, or otherwise inadequate conditions” sufficient to state a Due Process claim. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); see Grohs v. Lanigan, No. 16-7083, 2019 WL 150061, at *11 (D.N.J. Apr. 5, 2019) (allegations of exposure to “extreme heat combined with lack of potable water, as well as generally unsanitary conditions” sufficient to state a conditions-of-confinement claim under the Fourteenth Amendment). 134. Conditions that would violate the Eighth Amendment are more than enough to also violate a civil detainee’s due process rights. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).
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135. To prevail on a claim that conditions of confinement violate the Eighth Amendment, Petitioners must meet two requirements: (1) the deprivation alleged must be, objectively, “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the detainee’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
136. The Supreme Court has recognized that it violates the Eighth Amendment to crowd prisoners into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)); see also Stewart v. Kelchner, No. 06-2463, 2007 WL 9718681, at *13 (M.D. Pa. May 11, 2017), report and recommendation adopted, 2007 WL 9718672 (M.D. Pa. June 1, 2017).
137. Petitioners can establish deliberate indifference based on circumstantial evidence that the risk is obvious. The obviousness of the risk the Petitioners face, by itself, is enough to allow a factfinder to conclude that Respondents know of the risk. Phillips v. Superintendent Chester SCI, 739 F. App’x 125, 129 n.7 (3d Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Put another way, deliberate indifference may be shown through circumstantial
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evidence. Farmer, 511 U.S. at 842 (explaining that “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”). 138. Due process rights may be violated even before a detainee is exposed to disease. Because the Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety[,]’” Helling v. McKinney, 509 U.S. at 33. (quoting DeShaney, 489 U.S. at 200), “[i]t would be odd to deny 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[.]” Id. B.Respondents Are Violating Petitioner’s Constitutional Due Process Rights. 139. The conditions at the ICE Facilities described above, supra ¶¶ 40-61, are sufficient to demonstrate that Petitioners’ constitutional due process rights are being violated. Keeping at-risk Petitioners detained in such close proximity to one another and without the sanitation necessary to combat the spread of the virus serves no legitimate purpose. Nor is detention under these circumstances rationally related to the enforcement of immigration laws. 140. Petitioners’ due process rights are also being violated because their conditions of confinement place them at serious risk of being infected with
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COVID-19 and Respondents are being deliberately indifferent to this critical safety concern. 141. There is no question that COVID-19 poses a serious risk to Petitioners. COVID-19 is highly contagious, and can cause severe illness and death. See supra., Statement of Facts § A. Petitioners are at a heightened risk because of their age and/or underlying health conditions. See supra ¶¶ 66, 68, 71, 73, 75, 78, 80, 82, 84, 86, 88, 90, 94, 96, 98, 101, 103, 105, 107, 109, 111, 113, 115. 142. Respondents are aware of and have completely disregarded the serious risk that COVID-19 poses to Petitioners. See supra ¶ 124 (ACLU March 13, 2020 letter). 143. The risk that COVID-19 poses to Petitioners is also obvious, including to Respondents. Medical experts for the Department of Homeland Security have also identified the risk of COVID-19 spreading to ICE detention centers.8 John Sandweg, a former acting director of ICE, has written publicly about the need to release nonviolent detainees because ICE detention centers “are extremely susceptible to outbreaks of infectious diseases” and
8 See March 19, 2020 letter from Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH to House and Senate Committees on Homeland Security, available at https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich3.20.2020-Letter-to-Congress.pdf.
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“preventing the virus from being introduced into these facilities is impossible.”9 Prisons and jails around the country are already releasing nonviolent detainees because the risk of contagion is overwhelming.10 144. The circumstances of this case make clear that release is the only means to ensure compliance with Petitioners’ due process rights. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with underlying medical conditions. See supra ¶¶ 38, 63, 116. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible. C. ICE Regularly Uses Its Authority To Release People Detained In
Custody Because They Suffer Serious Medical Conditions. 145. ICE has a longstanding practice of prosecutorial discretion, which
demonstrates that the agency understands that its authority extends to— and

9 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent

Detainees.”

The Atlantic (March 22, 2020), available at

https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/.

10 See Order, Supreme Court of New Jersey, Docket No. 084230 (March 22, 2020)

(ordering release of most county jail detainees), available at

https://njcourts.gov/notices/2020/n200323a.pdf?c=4EF; United States v. Stephens,

No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (concluding that

the “unprecedented and extraordinarily dangerous nature of the COVID-19

pandemic” constituted compelling circumstances to adjust a Respondent’s bail

conditions and release him, even though there was “not yet a known outbreak among

the jail and prison populations” when the order was issued).

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includes— humanitarian releases from custody. The agency has routinely exercised its authority to release particularly vulnerable detainees. As former Deputy Assistant Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-Strait explains, “ICE has exercised and still exercises discretion for purposes of releasing individuals with serious medical conditions from detention.” See Thakker Dkt. 2-17 (Strait Decl.) at ¶ 3. 146. ICE has a range of highly effective tools at its disposal to ensure that individuals report for court hearings and other appointments, including conditions of supervision. For example, ICE’s conditional supervision program, called ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. A government-contracted evaluation of this program reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings. See Thakker Dkt. 2-17 (Lorenzen-Strait Decl.) ¶ 15. 147. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating
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against detention. See Thakker Dkt. 2-17 (Strait Decl.) at ¶¶ 10-14. For example, under 8 C.F.R. § 212.5(b)(1), ICE has routinely exercised its discretion to release particularly vulnerable detainees. Id. at 4-11. 148. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention. See Thakker Dkt. 2-17 (Strait Decl.) at ¶ 11. 149. While ICE officers may be exercising discretion less frequently in recent years, the statutory and regulatory authority underlying the use of prosecutorial discretion in custodial determinations remains in effect. See Thakker Dkt. 2-17 (Straight Decl.) at ¶ 13. 150. Consistent with the Due Process clause of the Fifth Amendment to the U.S. Constitution, ICE must release detainees where civil detention has become punitive and where release is the only remedy to prevent this impermissible punishment. The fact that ICE has the authority to release immigrants from custody and has exercised this authority in the past indicates that the remedy Petitioners request is neither unprecedented nor unmanageable for the agency. D. This Court Has Authority to Order Petitioners’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here. 151. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional
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mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). 152. This authority extends to “placing limits on a prison’s population” when necessary to ensure compliance with the Constitution. Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap). 153. The circumstances of this case make clear that release is the only means to ensure compliance with the Fifth Amendment’s prohibition against punitive detention. Petitioners’ medical conditions put them at grave risk of severe illness or death if they contract COVID-19. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with pre-existing medical conditions. Yet Respondents are detaining vulnerable Petitioners under conditions where they are forced into close contact with many other detainees and officers. By continuing detention in these circumstances, Respondents are subjecting Petitioners to unreasonable harm. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
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CLAIM FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions
of Confinement) 154. The forgoing allegations are re-alleged and incorporated herein. 155. The Fifth Amendment of the Constitution guarantees that civil
detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it fails to satisfy its affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the constitution when it fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety for those in custody. The federal government also violates substantive due process when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment. 156. By detaining Petitioners in the ICE Facilities, Respondents are subjecting Petitioners to a heightened risk of contracting COVID-19, for which there is no vaccine and no cure. Petitioners are particularly vulnerable to serious medical complications from COVID-19 infection and are risk of illness and death as long as they are held in detention. By subjecting Petitioners to this risk Respondents are maintaining detention conditions that amount to
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punishment and fail to ensure safety and health in violation of Petitioners’ due process rights. 157. Likewise, Respondents’ continued detention of Petitioners at the ICE Facilities is deliberately indifferent to Petitioners’ serious medical needs because only releasing Petitioners from custody can adequately protect them from COVID-19. Respondents are both aware of the serious risk posed by COVID-19 and are failing to take the only action that can respond to Petitioners’ medical needs, which is to release Petitioners.
PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grant the following relief:
a. Issue a Writ of Habeas Corpus on the ground that their continued detention violates the Due Process Clause and order Petitioners’ immediate release, with appropriate precautionary public health measures; b. In the alternative, issue injunctive relief ordering Respondents to immediately release Petitioners, with appropriate precautionary public health measures, on the grounds that their continued detention violates Petitioners’ constitutional due process rights; c. Issue a declaration that Respondents’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including all people ages 65 and older and persons of any age with
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underlying medical conditions that may increase the risk of serious COVID19, violates the Due Process Clause; d. Award Petitioners their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and e. Grant any other and further relief that this Court may deem just and proper.

Dated: April 3, 2020

Respectfully Submitted,

/s/ Will W. Sachse Will W. Sachse, Eq. (PA 84097) Thomas J. Miller, Esq. (PA 316587) Kelly Krellner, Esq. (PA 322080)* Carla G. Graff, Esq. (PA 324532) DECHERT, LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 T: 215-994-4000 E: will.sachse@dechert.com E: thomas.miller@dechert.com E: kelly.krellner@dechert.com E: carla.graff@dechert.com
David Fathi (WA 24893)* Eunice H. Cho (WA 53711)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616

/s/ Witold J. Walczak Witold J. Walczak (PA 62976) Vanessa L. Stine (PA 319569) Muneeba S. Talukder (CA 326394)* Erika Nyborg-Burch (NY 5485578)* AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA
247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 T: 412-681-7864 E: vwalczak@aclupa.org
P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 E: vstine@aclupa.org E: mtalukder@aclupa.org E: enyborg-burch@aclupa.org
Michael Tan (NY 4654208)* Omar C. Jadwat (NY 4118170) *

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E: dfathi@aclu.org E: echo@aclu.org

American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 T: (212) 549-2600 E: mtan@aclu.org E: ojadwat@aclu.org

*Petition for permission to file pro hac vice forthcoming

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

MEMORANDUM AND ORDER

April 7, 2020

Pending before the Court is the Motion for Temporary Restraining Order

and/or Preliminary Injunction filed by Petitioners-Plaintiffs Aaron Hope, Iwan

Rahardja, Jesus De La Pena, Rakibu Adam, Duc Viet Lam, Yelena Mukhina,

Nashom Gebretinsae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko,

Brisio Balderas-Dominguez, Viviana Ceballos, Wilders Paul, Marcos Javier Ortiz

Matos, Alexander Alvarenga, Armando Avecilla, Coswin Ricardo Murray, Edwin

Luis Crisostomo Rodriguez, Eldon Bernard Briette, Dembo Sannoh, Jesus Angel

Juarez Pantoja and Alger Fracois, (collectively “Petitioners”). (Doc. 5).

For the reasons that follow, the temporary restraining order shall be granted

and the Respondents shall be directed to immediately release Petitioners today on

their own recognizance.

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioners are a diverse group of individuals from around the world who are

being held in civil detention by Immigration and Customs Enforcement, (“ICE”),

at York County Prison and Pike County Correctional facility, (“the Facilities”),

while they await final disposition of their immigration cases.

Each Petitioner suffers from chronic medical conditions and faces an

imminent risk of death or serious injury if exposed to COVID-19. Hope is 32 years

old and has serious respiratory problems that have led to his hospitalization for

pneumonia. He also has sleep apnea and high blood pressure. (Doc. 1, ¶ 3).

Rahardja is 51 years old and suffers from diabetes and hypertension.

(Doc. 1, ¶ 4). De La Pena is 37 years old and suffers from severe asthma and

hypertension and is over-weight. (Doc. 1, ¶ 5). Adam, 34 years old, suffers from

asthma and high blood pressure. (Doc. 1, ¶ 6). Viet Lam is 50 years old and

suffers from diabetes and high blood pressure. Id. at ¶ 7. Mukhina is 35 years

old and suffers from asthma, a heart murmur, and hepatitis C, and has a history

of blood clots and seizures. (Doc.1, ¶ 8). Gebretnisae is 28 years old and suffers

from Cn’s arthritis and nerve pain, requiring many medications. (Doc. 1, ¶ 9).

Muhammed is 69 years old and suffers from asthma, is pre-diabetic, and

has recently lost a significant amount of weight. (Doc. 1, ¶ 10). Weithers is 59

years old and suffers from emphysema and chronic obstructive pulmonary
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disease. (Doc. 1, ¶ 11). Bugarenko, age 49, suffers from pre-diabetes, high blood pressure, and diverticulitis, as well as debilitating pain that inhibits his ability to walk. (Doc. 1,¶ 12). Baldarez-Domingez is 47 years old and suffers from diabetes, atrial fibrillation, and high blood pressure. (Doc. 1, ¶ 13). Ceballos, 56 years old, suffers from high blood pressure. (Doc. 1, ¶ 14). Paul is 32 years old and suffers from traumatic brain injury, seizures, and headaches. (Doc. 1, ¶ 15).
Matos is 32 years old and suffers from diabetes. (Doc. 1, ¶ 16). Alvargena, age 46, suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability from a prior accident. (Doc. 1, ¶ 17). Avecilla is 53 years old and suffers from diabetes. (Doc 1, ¶ 18). Murray is 45 years old and suffers from asthma but has been unable to obtain an inhaler. (Doc. 1, ¶ 19). Rodriguez is 31 years old and suffers from asthma. (Doc. 1, ¶ 20). Briette is 46 years old and suffers from diabetes, high blood pressure, high cholesterol, depression, and anxiety. (Doc. 1, ¶ 21). Sannoh, 41 years old, suffers from diabetes requiring daily medication. (Doc. 1, ¶ 22). Pantoja is 36 years old and suffers from asthma, sleep apnea, and high blood pressure. (Doc.
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1, ¶ 23). Francois is 45 years old and suffers from hypertension, pain when he urinates, and swollen feet. (Doc. 1, ¶ 24). 1
Named as Respondents are: Clair Doll, Warden of York County Prison; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona FloresLund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION We had occasion to consider the substantially same set of circumstances less
than a week ago in our opinion Thakker v. Doll. No. 1:20-CV00480 (M.D. Pa. Mar. 31, 2020) (Jones, J.) (discussing in-depth the potential severity of COVID-19, its prevalence across the globe, and its impact upon ICE detention facilities in particular). We now begin our analysis of Petitioners’ claims guided by our previous findings.
i. Legal Standard Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of

1

We have previously held that ICE detainees have the requisite standing to bring claims

based upon imminent contraction of COVID-19, and that a habeas petition is the proper vehicle

to do so. Thakker v. Doll, No. 1:20-CV00480, at 5-6 (M.D. Pa. Mar. 31, 2020).

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Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
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ii. Irreparable Harm COVID-19 is a novel coronavirus that causes “serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. [20-cv-562, Doc. 3, Ex. 2]. The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.).” Thakker at 10. Because of these potentially catastrophic complications, COVID-19 has radically transformed our everyday lives in ways previously inconceivable. Most of the county can no longer leave their homes unless absolutely necessary.2 “Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home.” Thakker. at 4. Indeed, the World Health Organization (“WHO”) has declared a global pandemic3 in light of the

2

Sarah Mervosh, Denise Lu, and Vanessa Swales, “See Which States and Cities have Told

Residents to Stay at Home,” NEW YORK TIMES,

https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html (last

accessed April 7, 2020).

3

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

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stark realities we now face: over one million people worldwide have contracted COVID-19. Well over sixty thousand have perished as a result.4
Less than one week ago, we found that the threat of a COVID-19 outbreak in the Facilities constituted irreparable harm to substantially similar Petitioners, despite the fact that there were, at that time, no confirmed cases of COVID-19 in the Facilities. Thakker, at 7-19.5 In so doing, we noted that “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Id. at 8 (emphasis in original).
We have, unfortunately, been proven correct in this regard. As of the time of this writing, the Pike County Correctional Facility has officially reported that four ICE detainees housed therein have tested positive for COVID-19.6 Four Pike County Correctional employees have also tested positive. (Doc. 6, Ex. 3). An additional detainee at York County Prison has also tested positive. See ICE Latest Statement. And we can only assume that these numbers may well be much higher

4

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed April 7, 2020).

5

In Thakker, we considered the potential harm faced by ICE detainees in county prisons

located in York, Pike, and Clinton Counties, finding that there was a high likelihood that

Petitioners would face severe complications, and even death, should they contract COVID-19 in

the Facilities—which we found to be a likely outcome of their continued detention. Thakker 7-

19. Here, we again consider the likelihood of irreparable harm in two of those same facilities:

those in York and Pike Counties.

6

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

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than reported—we have allegations before us that requests by detainees for COVID-19 tests have not been granted, despite explicit knowledge that the virus has entered the Facilities. (Doc. 6, Ex. 7).
We also have further declarations that no effective containment measures have been put into place to protect Petitioners.7 Officers and medical staff, who regularly leave the confines of the Facilities and have ample opportunities to contract the virus elsewhere, do not reliably wear gloves and masks when interacting with inmates. (Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23). Temperature checks are infrequently conducted, even among detainees who had close contact with others who have since tested positive. (Doc. 3, Ex. 23). The cell blocks which housed those who test positive are not thoroughly evacuated and cleaned to prevent the spread. (Doc. 3, Ex. 4). We even have reports that detainees exhibiting COVID-like symptoms are remaining in general housing for days, and that once they are quarantined, no testing is being provided to those who remain. (Doc. 3, Ex. 8).
We have previously discussed in great detail how the incursion of COVID19 into ICE detention facilities could result in catastrophic outcomes, particularly in light of the grim conditions present in these specific Facilities. See Thakker at

7

We have previously discussed the overcrowding and unsanitary conditions present at

these Facilities. See Thakker at 14-15.

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14-15. It now seems that our worst fears have been realized—COVID-19 is spreading, and not nearly enough is being done to combat it. We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID19, to bear the consequences of ICE’s inaction. We therefore find that irreparable harm faces the Petitioners before us should they contract COVID-19.8
iii. Likelihood of Success on the Merits Petitioners argue that they are “likely to establish a due process violation through conditions of confinement that expose them to the serious risks associated with COVID-19.” (Doc. 6 at 13). For the reasons that follow, we agree. As we previously stated in Thakker, Petitioners must show that their conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d

8

Many of our sister courts across the nation have agreed with our conclusion. See Thakker

at 16-19.

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229, 232 (3d Cir. 2008)). We therefore ask whether the conditions imposed are rationally related to a legitimate government purpose. They are not.
We previously held, considering the present living conditions present at the same detention Facilities now at issue here, that, “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Thakker at 20-21. There is no indication that there has been an improvement in conditions at the Facilities. Indeed, all indications point towards the contrary. There are now individuals who have tested positive at both Facilities,9 and we have further accusations that those situations are not being properly contained.10 “Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Thakker at 21.
We further note that Respondents previously proffered legitimate government objective holds no greater sway here than it did in Thakker. The Respondents had

9

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

10

See Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23 (alleging

that proper medical protective equipment is not being used by Facility staff, that temperature

checks and COVID-19 testing are not being performed on detainees in close contact with the

virus, and that proper cleaning of housing blocks is not taking place).

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maintained that “preventing detained aliens from absconding and ensuring that they
appear for removal proceedings is a legitimate governmental objective.” (Thakker,
20-cv-480, Doc. 35 at 38). However, “we note that ICE has a plethora of means
other than physical detention at their disposal by which they may monitor civil
detainees and ensure that they are present at removal proceedings, including remote
monitoring and routine check-ins. Physical detention itself will place a burden on
community healthcare systems and will needlessly endanger Petitioners, prison
employees, and the greater community. We cannot see the rational basis of such a
risk.” Thakker at 21-22. We therefore find that Petitioners are likely to succeed on
the merits of their due process “conditions of confinement” claim. 11
11 As previously discussed in Thakker, we also think it likely Petitioners will prevail under the more exacting Eighth Amendment standards as well. To succeed on an Eighth Amendment conditions of confinement claim, the Petitioners must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively ‘sufficiently serious.’” Thakker at n.15. Furthermore, we note that authorities can be “deliberately indifferent to an inmate’s current health problems” when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. “The current measures undertaken by ICE, including ‘cohorting’ detainees, are patently ineffective in preventing the spread of COVID-19,” as is now evidenced by multiple positive COVID-19 tests in both Facilities. Thakker at n.15.
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iv. Balancing of the Equities and Public Interest The equities at issue and public interest “weigh heavily in Petitioners’ favor.” Thakker at 23. We have already noted that Petitioners face a very real risk of serious COVID-19 complications. We also find that Respondents face very little potential harm from Petitioner’s immediate release. While we “agree that preventing Petitioners from absconding. . .is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.” Id. Finally, the public interest strongly encourages Petitioners’ release. “As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, ‘the continued detention of aging or ill civil detainees does not serve the public’s interest.’” Thakker at 23 (citing Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020)). Releasing these high-risk Petitioners, and therefore providing more space for effective social
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distancing within the Facilities, will clearly benefit the surrounding areas. Rural hospitals will be less overwhelmed by potential detainee COVID-19 cases and there will be less of a risk that Facilities staff will carry the virus into their homes and communities. “Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.” Thakker at 23-24.
III. CONCLUSION “In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.” Thakker at 24.
We have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.
We are mindful that judicial decisions such as these are both controversial and difficult for the public to absorb. It is all too easy for some to embrace the notion that individuals such as Petitioners should be denied relief simply because they lack citizenship in this country. However, Article III Courts do not operate according to
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polls or the popular will, but rather to do justice and to rule according to the facts and the law.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison and Pike County Correctional Facility shall be ordered to immediately release the Petitioners today on their own recognizance without fail.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 5), is GRANTED. 2. Respondents, and the York County Prison and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance. 3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release. 4. This TRO will expire on April 20, 2020 at 5:00 p.m. 5. No later than noon on April 13, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction. 6. The Petitioners may file a response before the opening of business on April 16, 2020.
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s/ John E. Jones III John E. Jones III United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

ORDER

April 10, 2020

Before the Court for resolution is the Respondents’ Motion to Reconsider

and Stay Temporary Restraining Order (“the Motion”) (Doc. 12) filed on April 7,

2020. On April 7, 2020, we issued an Order (Doc. 13) staying the TRO issued by

us earlier that day.1 We have received the Petitioners’ brief in opposition to the

Motion to Reconsider and the Respondents’ reply. (Docs. 15 and 17). This matter

is therefore ripe for our review. For the reasons that follow, we shall deny the

Motion, lift the stay imposed on our April 7, 2020 TRO and order that the

Petitioners2 be released forthwith.

1 The TRO ordered Respondents to immediately release Petitioners from detention and ordered Petitioners to self-quarantine in their homes for a period of 14 days. (Doc. 11).
2 Since the filing of this matter, Petitioners Duc Viet Lam and Iwan Rahardja have been released from ICE custody. Therefore, this matter is moot as to these Petitioners and they shall be terminated as parties to this action.
1
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I. STANDARD OF REVIEW The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence, Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), and, as such, “motions for reconsideration should be granted sparingly.” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). Generally, a motion for reconsideration will only be granted on one of the following three grounds: (1) if there has been an intervening change in controlling law; (2) if new evidence, which was not previously available, has become available; or (3) if it is necessary to correct a clear error of law or to prevent manifest injustice. Max’s Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A motion for reconsideration may not be used to present a new legal theory for the first time, to raise new arguments that could have been made in support of the original motion, see Vaidya v. Xerox Corp., No. CIV.A.97-547, 1997 WL 732464, at *2 (E.D. Pa. 1997), and should not ask the court to rethink a decision that it has already made. Tobin v. GE, No. Civ. A. 95-4003, 1998 WL 31875, at *2 (E.D. Pa. 1998). Mere dissatisfaction with the Court’s ruling is not a proper basis for reconsideration. Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993).
With this exacting standard in mind, we turn to an analysis of the Respondents’ Motion.
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II. DISCUSSION In support of their reconsideration request, the Respondents rely on a newly supplied affidavit of Joseph Dunn, Assistant Field Office Director (AFOD) with the Department of Homeland Security, Immigration and Customs Enforcement (ICE). (Doc. 12, Ex. 1). Within his affidavit, AFOD Dunn advises of various protocols being undertaken at Pike and York County Correctional Facilities to prevent the spread of COVID-19.3 Respondents submit that the new evidence, in the form of AFOD Dunn’s affidavit, makes it clear that the Petitioners’ constitutional rights are not being violated by the conditions inside the institutions. Respondents argue, therefore, that Petitioners cannot and have not established a likelihood of success on the merits of their claims. Additionally, within his affidavit AFOD Dunn supplies the criminal histories of the Petitioners, and Respondents argue that the public interest is not served by releasing the Petitioners into the community.
Taking the latter point first, the Court respects the Respondents’ position that certain Petitioners pose a flight risk or danger to the community. However, it is the Court’s view that attaching conditions to the Petitioners’ release, which we shall do herein, quells that concern. We simply cannot find, in the face of the
3 It is well to note that AFOD Dunn drafted his affidavit relying exclusively upon the assurances of others. We have no indication that he has personally visited these facilities in the course of preparing his affidavit.
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scope of the COVID-19 pandemic that is washing through this country and the subject facilities, that the public interest favors continued detention of civil immigration detainees with underlying health conditions that render them particularly vulnerable were they to contract COVID-19.
Further, we are unmoved by AFOD Dunn’s assertions that the facilities are equipped to stop the spread of COVID-19.4 While they may have ramped up their sanitation protocols, the simple fact that inmates are incapable of social distancing in the facilities remains. The conditions at the facilities as faced by these Petitioners continue to represent a threat to their constitutional rights.
Accordingly, based on the foregoing, the Respondents’ Motion shall be denied and the stay previously placed on the TRO shall be lifted. In the Order that follows, we shall include additional conditions relative to the Petitioners’ release, in an attempt to allay some of the Respondents’ fears concerning risk of flight and danger to the community. Nothing herein prevents us from imposing different or additional conditions in the future, should this TRO be extended or converted into a preliminary injunction.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Respondents’ Motion to Reconsider (Doc. 12) is DENIED.

4 As the parties are aware, inmates at both institutions are infected with COVID-19, and two female inmates at Pike have died of COVID-19 in recent days.
4

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2. The stay imposed (Doc. 13) on the TRO of April 7, 2020 is LIFTED and Respondents, and the York County Prison and Pike County Correctional Facility, SHALL IMMEDIATELY RELEASE the Petitioners TODAY. The said release period shall extend until such time as the COVID-19 state of emergency as declared by the Governor of the Commonwealth of Pennsylvania is lifted, or by further Order of this Court.
3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release.
4. The following conditions shall attach to this Order of the Petitioners’ release: a. This Order expires immediately if a Petitioner absconds; b. This Order requires Petitioners to comply with all Executive Orders of the Governor of Pennsylvania, as well as national, state, and local guidance regarding staying at home, sheltering in place, and social distancing; c. This Order does not prevent the government from taking Petitioners back into custody should they commit any further crimes or otherwise violate the terms of their release; d. The Petitioners shall report their whereabouts once per week to
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their attorneys, who in turn shall report to the Respondents if a Petitioner has absconded; e. The Petitioners must appear at all hearings pertaining to their removal proceedings, and in the event that they are subject to a final order of deportation for which arrangements have been finalized within the period of this Order, they shall fully comply with the said order of deportation and all instructions pertaining thereto; and f. Respondents may impose other reasonable nonconfinement terms of supervision that would not require Petitioners to violate national, state and local guidance regarding staying at home, sheltering in place, and social distancing. 5. As referenced in our April 7, 2020 Order, the TRO expires on April 20, 2020 at 5:00 p.m.
s/ John E. Jones III John E. Jones III United States District Judge
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United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:20-cv-00562-JEJ-MCC

Hope et al v. Doll et al Assigned to: Chief Judge John E. Jones, III Referred to: Magistrate Judge Martin C. Carlson Related Case: 1:20-cv-00480-JEJ Cause: 28:2241 Petition for Writ of Habeas Corpus (IMMIGRATION)

Date Filed: 04/03/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainees Jurisdiction: U.S. Government Defendant

Plaintiff Aaron Hope

represented by Carla G Graff Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-2513 Email: carla.graff@dechert.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Vanessa L. Stine ACLU of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 215.592.1513 x145 Email: vstine@aclupa.org

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Erika Nyborg-Burch American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 (215) 592-1513 Email: enyborg-burch@aclupa.org ATTORNEY TO BE NOTICED

Plaintiff Iwan Rahardja

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Plaintiff Glen Weithers

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Plaintiff Alexander Alvarenga

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas James Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanessa L. Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Will W. Sachse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika Nyborg-Burch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dembo Sannoh

Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Carla G Graff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Muneeba S Talukder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas James Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.pamd.uscourts.gov/cgi-bin/DktRpt.pl?936099574222614-L_1_0-1

Vanessa L. Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Will W. Sachse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika Nyborg-Burch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jesus Angel Juarez Pantoja

Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Carla G Graff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Muneeba S Talukder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas James Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanessa L. Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Will W. Sachse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Erika Nyborg-Burch (See above for address)
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ATTORNEY TO BE NOTICED

Plaintiff Duckens Max Adler Francois

Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Carla G Graff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Muneeba S Talukder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas James Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanessa L. Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Will W. Sachse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika Nyborg-Burch (See above for address) ATTORNEY TO BE NOTICED

Kelly A Krellner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jesus De La Pena

represented by Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
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Duc Viet Lam
Plaintiff Nahom Gebretnisae
Plaintiff Konstantin Bugarenko
Plaintiff Armando Avecilla TERMINATED: 12/16/2020

Pennsylvania Middle District Version 6.1
represented by Duc Viet Lam PRO SE
represented by Vanessa L. Stine (See above for address) ATTORNEY TO BE NOTICED
represented by Konstantin Bugarenko York PRO SE
represented by Erika Nyborg-Burch (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Clair Doll In his ofﬁcial capacity as Warden of York County Prison

represented by Joanne M. Sanderson U.S. Attorney's Ofﬁce 228 Walnut Street Harrisburg, PA 17101 717-221-4482 Email: joanne.sanderson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harlan William Glasser U.S. ATTORNEY'S OFFICE 228 Walnut Street Suite 220 P.O. Box 11754 Harrisburg, PA 17108 717-221-4482 Email: harlan.glasser@usdoj.gov ATTORNEY TO BE NOTICED

Michael Butler United States Attorney's Ofﬁce 228 Walnut Street Suite 220 Harrisburg, PA 17108 717-221-4482 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED

https://ecf.pamd.uscourts.gov/cgi-bin/DktRpt.pl?936099574222614-L_1_0-1

Richard D Euliss U.S. Attorney's Ofﬁce, Middle District of Pennsylvania 228 Walnut Street
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Defendant Craig A. Lowe In his ofﬁcial capacity as Warden of Pike County Correctional Facility

Pennsylvania Middle District Version 6.1
Suite 220 Harrisburg, PA 17108 717-614-4912 Email: richard.d.euliss@usdoj.gov ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harlan William Glasser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Simona Flores-Lund In her ofﬁcial capacity as Field Ofﬁce Director, Enforcement and Removal Operations, US Immigration and Customs Enforcement

Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harlan William Glasser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Matthew Albence In his ofﬁcial capacity as Acting Director, US Immigration and Customs Enforcement

Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harlan William Glasser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chad Wolf In his ofﬁcial capacity as Acting Secretary, US Department of Homeland Security

Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED
represented by Joanne M. Sanderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Harlan William Glasser (See above for address) ATTORNEY TO BE NOTICED
Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/03/2020
04/03/2020 04/03/2020
04/03/2020 04/03/2020
04/03/2020

# Docket Text
1 PETITION FOR INJUNCTION for Writ of Habeas Corpus ( Filing fee $5, Receipt Number 0314-5055240), ﬁled by Coswin Ricardo Murray, Iwan Rahardja Jesus De La Pena, Jesus Angel Juarez Pantoja, Eldon Bernard Briette, Aaron Hope, Rakibu Adam Duc Viet Lam, Marcos Javier Ortiz Matos, Ismail Muhammed, Dembo Sannoh, Alexander Alvarenga Armando Avecilla, Alger Francois, Wilders Paul, Brisio BalderasDominguez, Edwin Luis Crisostomo Rodriguez, Viviana Ceballos, Yelena Mukhina Nahom Gebretnisae, Glenn Weithers Konstantin Bugarenko. (Attachments: # 1 Civil Cover Sheet)(mfa) (Entered: 04/03/2020)
2 DECLARATION of Witold J. Walczak. (mfa) (Entered: 04/03/2020)
3 EXHIBITS ﬁled by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko re 1 Petition for Writ of Habeas Corpus. (Attachments: # 1 Exhibit 1-A, # 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 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26)(mfa) (Entered: 04/03/2020)
4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Muneeba S Talukder on behalf of All Plaintiffs Attorney Muneeba Talukder is seeking special admission. Filing fee $ 50, receipt number 0314-5055652.. (Talukder, Muneeba) (Entered: 04/03/2020)
5 MOTION for Temporary Restraining Order by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko. (Attachments: # 1 Proposed Order)(Sachse, Will) (Entered: 04/03/2020)
6 BRIEF IN SUPPORT re 5 MOTION for Temporary Restraining Order ﬁled by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko. (Attachments: # 1 Declaration, # 2 Exhibit(s) Ex. 1, # 3 Exhibit(s) Ex. 2, #

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4 Exhibit(s) Ex. 3, # 5 Exhibit(s) Ex. 4, # 6 Exhibit(s) Ex. 5, # 7 Exhibit(s) Ex. 6, # 8 Exhibit(s) Ex. 7, # 9 Unpublished Opinion(s))(Sachse, Will) (Entered: 04/03/2020)

04/06/2020

DOCKET ANNOTATION: Petitioner, Muneeba Talukder, and Associate Counsel bar status veriﬁed. (pjr) (Entered: 04/06/2020)

04/06/2020

7 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Kelly A Krellner on behalf of All Plaintiffs Attorney Kelly Krellner is seeking special admission. Filing fee $ 50, receipt number 0314-5056354.. (Krellner, Kelly) (Entered: 04/06/2020)

04/06/2020

DOCKET ANNOTATION: Petitioner, Muneebaa Talukder, and Associate Counsel bar status veriﬁed. (pjr) (Entered: 04/06/2020)

04/06/2020

8 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Carla G Graff on behalf of All Plaintiffs Attorney Carla G. Graff is seeking special admission. Filing fee $ 50, receipt number 0314-5056406.. (Graff, Carla) (Entered: 04/06/2020)

04/06/2020

DOCKET ANNOTATION: Petitioners, Carla Graff, Kelly Krellner, and Associate Counsel bar status veriﬁed. (pjr) (Entered: 04/06/2020)

04/06/2020

9 SPECIAL ADMISSIONS FORM APPROVED as to Kelly Krellner.Signed by Honorable John E. Jones, III on 4/6/20. (rw) (Entered: 04/06/2020)

04/06/2020 10 SPECIAL ADMISSIONS FORM APPROVED as to Carla G. Graff.Signed by Honorable John E. Jones, III on 4/6/20. (rw) (Entered: 04/06/2020)

04/07/2020

11 ORDER 1. The Petitioners Motion for Temporary Restraining Order, (Doc. 5), is GRANTED.2. Respondents, and the York County Prison and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release.4. This TRO will expire on April 20, 2020 at 5:00 p.m.5. No later than noon on April 13, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction.6. The Petitioners may ﬁle a response before the opening of business on April 16, 2020. (eo) (Entered: 04/07/2020)

04/07/2020

12 MOTION for Reconsideration re 11 Order on Motion for TRO,, and to Stay TRO by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Declaration, # 2 Proposed Order)(Euliss, Richard) (Entered: 04/07/2020)

04/07/2020 13 ORDER Upon consideration of Respondents Motion to Reconsider Temporary Restraining Order, it is HEREBY ORDERED the Motion is GRANTED. Execution of the Courts April 7, 2020 Order is STAYED pending further Order of Court. The Petitioners shall ﬁle a response to the Respondents' Motion by the close of business tomorrow, April 8, 2020. (eo) (Entered: 04/07/2020)

04/08/2020 14 SCHEDULING ORDER: Telephone Status Conference set for 4/9/2020 02:00 PM before Honorable John E. Jones III. See order for details and instructions (eo) (Entered: 04/08/2020)

04/08/2020

15 BRIEF IN OPPOSITION re 12 MOTION for Reconsideration re 11 Order on Motion for TRO,, and to Stay TRO ﬁled by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko. (Attachments: # 1 Declaration, # 2 Exhibit(s) 27, # 3 Exhibit(s) 28, # 4 Exhibit(s) 29, # 5 Exhibit(s) 30, # 6 Exhibit(s)

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31, # 7 Exhibit(s) 32, # 8 Exhibit(s) 33, # 9 Exhibit(s) 34, # 10 Exhibit(s) 35, # 11 Exhibit(s) 36, # 12 Exhibit(s) 37)(Stine, Vanessa) (Entered: 04/08/2020)

04/08/2020

16 RESPONSE TO PETITION FOR HABEAS CORPUS by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Exhibit(s), # 2 Unpublished Opinion(s))(Glasser, Harlan) (Entered: 04/08/2020)

04/09/2020

17 REPLY BRIEF re 12 MOTION for Reconsideration re 11 Order on Motion for TRO,, and to Stay TRO ﬁled by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf.(Euliss, Richard) (Entered: 04/09/2020)

04/09/2020

19 NOTICE by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf re 16 Response to Petition for Habeas Corpus, of Supplemental Authority (Attachments: # 1 Exhibit(s) Verma Decision)(Euliss, Richard) (Entered: 04/09/2020)

04/09/2020

20 NOTICE by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf re 16 Response to Petition for Habeas Corpus, of Supplemental Authority (Attachments: # 1 Exhibit(s))(Euliss, Richard) (Entered: 04/09/2020)

04/10/2020

21 AFFIDAVIT in Support re 12 MOTION for Reconsideration re 11 Order on Motion for TRO,, and to Stay TRO ﬁled by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Declaration)(Glasser, Harlan) (Entered: 04/10/2020)

04/10/2020 22 ORDER - The Respondents Motion to Reconsider (Doc. 12) is DENIED. See order for all details. (eo) (Entered: 04/10/2020)

04/10/2020

23 MOTION to Stay re 22 Order by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Proposed Order)(Euliss, Richard) (Entered: 04/10/2020)

04/10/2020

24 NOTICE OF APPEAL in Immigration Case as to 22 Order, 11 Order on Motion for TRO,, by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. Filing Fee and Docket Fee NOT PAID. The Clerk's Ofﬁce hereby certiﬁes the record and the docket sheet available through ECF to be the certiﬁed list in lieu of the record and/or the certiﬁed copy of the docket entries. (Euliss, Richard) (Entered: 04/10/2020)

04/10/2020 25 ORDER Respondents ex parte Application to Stay all Proceedings Pending Appeal Authorization (Doc. 23) is DENIED (eo) (Entered: 04/10/2020)

04/10/2020

Supplemental Record on Appeal transmitted to US Court of Appeals re 25 Order on Motion to Stay. Documents and Docket Sheet available through ECF. The Clerk's Ofﬁce hereby certiﬁes the record and the docket sheet available through ECF to be the certiﬁed list in lieu of the record and/or the certiﬁed copy of the docket entries. (eo) (Entered: 04/10/2020)

08/25/2020

27 JUDGMENT of USCA Vacating and Remanding Orders of the District Court as to 24 Notice of Appeal, ﬁled by Clair Doll, Matthew Albence, Chad Wolf, Simona FloresLund, Craig A. Lowe. ( Caitlyn) (Entered: 08/25/2020)

11/04/2020

28 REQUEST for Status Conference by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko. (Stine, Vanessa) (Entered: 11/04/2020)

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29 SCHEDULING ORDER: Telephone Status Conference set for 11/12/2020 02:30 PM before Chief Judge John E. Jones III. See order for details. (eo) (Entered: 11/04/2020)

11/05/2020

30 Unopposed MOTION to Amend/Correct Case Caption by Rakibu Adam Duc Viet Lam, Alexander Alvarenga Armando Avecilla, Jesus Angel Juarez Pantoja, Brisio BalderasDominguez, Eldon Bernard Briette, Viviana Ceballos, Alger Francois, Aaron Hope, Marcos Javier Ortiz Matos, Edwin Luis Crisostomo Rodriguez, Ismail Muhammed, Yelena Mukhina Nahom Gebretnisae, Wilders Paul, Iwan Rahardja Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh, Glenn Weithers Konstantin Bugarenko. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 11/05/2020)

11/06/2020

31 ORDER granting 30 Motion to Amend/Correct (eo) (Entered: 11/06/2020)

11/08/2020

32 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Erika Nyborg-Burch on behalf of All Plaintiffs Attorney Erika Nyborg-Burch is seeking special admission. Filing fee $ 50, receipt number APAMDC-5333146.. (Nyborg-Burch, Erika) (Entered: 11/09/2020)

11/09/2020

33 SPECIAL ADMISSIONS FORM APPROVED as to Erika Britt Nyborg-Burch (eo) (Entered: 11/09/2020)

11/09/2020

34 Emergency MOTION for Temporary Restraining Order by Rakibu Adam, Alexander Alvarenga, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Duckens Max Adler Francois, Nahaom Gebretnisae, Aaron Hope, Edwin Luis Crisostomo Rodriguez, Yelena Mukhina, Wilders Paul, Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh. (Attachments: # 1 Proposed Order, # 2 Declaration, # 3 Exhibit(s))(Stine, Vanessa) (Entered: 11/09/2020)

11/09/2020

35 BRIEF IN SUPPORT re 34 Emergency MOTION for Temporary Restraining Order ﬁled by Rakibu Adam, Alexander Alvarenga, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Duckens Max Adler Francois, Nahaom Gebretnisae, Aaron Hope, Edwin Luis Crisostomo Rodriguez, Yelena Mukhina, Wilders Paul, Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh.(Stine, Vanessa) (Entered: 11/09/2020)

11/09/2020

36 EXHIBIT (unpublished decisions) by Rakibu Adam, Alexander Alvarenga, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Duckens Max Adler Francois, Nahaom Gebretnisae, Aaron Hope, Edwin Luis Crisostomo Rodriguez, Yelena Mukhina, Wilders Paul, Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh re 35 Brief in Support,. (Stine, Vanessa) (Entered: 11/09/2020)

11/09/2020

37 ORDER The Court shall DEFER a ruling on the Petitioners Motion for TemporaryRestraining Order (Doc. 34) ﬁled on todays date (eo) (Entered: 11/09/2020)

11/09/2020

38 Unopposed MOTION to Dismiss Party Armando Avecilla by Armando Avecilla. (Attachments: # 1 Proposed Order)(Nyborg-Burch, Erika) (Entered: 11/09/2020)

11/10/2020

39 NOTICE of Appearance by Michael Butler on behalf of Clair Doll (Butler, Michael) (Entered: 11/10/2020)

11/12/2020

40 MANDATE of USCA as to 24 Notice of Appeal, ﬁled by Clair Doll, Matthew Albence, Chad Wolf, Simona Flores-Lund, Craig A. Lowe. (Attachments: # 1 USCA Opinion)( Caitlyn) (Entered: 11/12/2020)

11/12/2020

42 ORDER The Court shall DENY WITHOUT PREJUDICE Petitioners Emergency Motion for Temporary Restraining Order. (Doc. 34). (eo) (Entered: 11/12/2020)

12/16/2020

43 ORDER granting 38 Motion to Dismiss Party. See order for details. (eo) (Entered:

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44 ORDER REFERRING CASE to Magistrate Judge Martin C. Carlson- We are in receipt of Petitioners notiﬁcation of an ongoing discovery dispute in the above-captioned case and will order that this matter be immediately REFERRED to Magistrate Judge Martin Carlson for resolution. (eo) (Entered: 12/18/2020)

45 SUGGESTION OF MOOTNESS Upon the Record as to Petition for Writ of Habeas Corpus by Matthew Albence, Clair Doll, Simona Flores-Lund, Craig A. Lowe, Chad Wolf. (Attachments: # 1 Exhibit(s) Exhibit "1", # 2 Exhibit(s) Exhibit "2")(Glasser, Harlan) (Entered: 12/21/2020)

47 ORDER - IT IS ORDERED as follows: 1. The parties shall consult and confer and propound their respective discovery requests on the other on or before Monday, January 11, 2021. 2. If there are requests on which the parties cannot reach an agreement, as to either the scope of the discovery or the Rules that govern the requests, the parties shall submit briefs outlining their respective positions on the disputed discovery requests, including which Rules should govern therequests, on or before Monday, January 25, 2020. Signed by Magistrate Judge Martin C. Carlson on December 22, 2020. (kjn) (Entered: 12/22/2020)

48 MOTION for Extension of Time to ﬁle a brief in opposition to Respondents' suggestion of mootness by Rakibu Adam, Alexander Alvarenga, Jesus Angel Juarez Pantoja, Brisio Balderas-Dominguez, Eldon Bernard Briette, Viviana Ceballos, Duckens Max Adler Francois, Nahom Gebretnisae, Aaron Hope, Edwin Luis Crisostomo Rodriguez, Yelena Mukhina, Wilders Paul, Jesus De La Pena, Coswin Ricardo Murray, Dembo Sannoh. (Attachments: # 1 Proposed Order)(Stine, Vanessa) (Entered: 12/23/2020)

49 ORDER granting 48 Motion to Extend Time (eo) (Entered: 12/23/2020)

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[CONTENT]  ||| Immigration and Customs Enforcement (ICE | York County Prison | Pike County Correctional Facility ||| COVID-19 ||| April 7, 2020 |||  ||| The Third Circuit | August 25, 2020 |||  ||| 22 | the United States | Middle District | Pennsylvania | COVID-19 ||| April 3, 2020 | ACLU | Pennsylvania | Dechert LLP | Clair Doll | the York County Prison | Craig A. Lowe | Warden | Pike County Correctional Facility | Enforcement and Removal Operations | ERO | U.S. Immigration and Customs Enforcement | Matthew Albence | ICE | Chad Wolf | the U.S. Department of Homeland Security ||| COVID-19 ||| March 31, 2020 | COVID-19 ||| Thakker | Clearinghouse | ICE ||| April 7, 2020 | John E. Jones III | 22 ||| April 10 ||| the the Third Circuit | August 25, 2020 ||| Warden York Cty ||| 2020 | U.S. App |||  |||  [SUMMARY] COVID-19 Summary: This is a hybrid putative class action and habeas action filed by a group of medically vulnerable individuals being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison and Pike County Correctional Facility. The plaintiffs seek safety remedies and release from detention in light of COVID-19. The court granted the plaintiffs’ temporary restraining order on April 7, 2020. Defendants appealed. The Third Circuit vacated and remanded the decision for a temporary restraining order on August 25, 2020. The case is ongoing. <hr>

A group of 22 medically vulnerable plaintiffs in civil detention facing potential deportation filed a hybrid putative class action and habeas corpus proceeding in the United States District Court Middle District of Pennsylvania asking for release in the light of the COVID-19 pandemic. On April 3, 2020, represented by the ACLU of Pennsylvania and the law firm Dechert LLP, the plaintiffs asked for a temporary restraining order against the detention centers and their wardens, including Mr. Clair Doll in his official capacity as the warden of the York County Prison, Craig A. Lowe as Warden of Pike County Correctional Facility, Simona Flores-Lund as Field Office Director, Enforcement and Removal Operations (ERO), U.S. Immigration and Customs Enforcement (ICE), Matthew Albence as Acting Director of ICE, and Chad Wolf as Acting Secretary of the U.S. Department of Homeland Security.

The plaintiffs based their request to the court on the defendants’ alleged failures to adequately protect high-risk detainees from contracting COVID-19. Since March 31, 2020, the conditions at the facilities had deteriorated, with cramped, overcrowded facilities hindering social distancing, increased numbers of positive COVID-19 test results, and the rising necessity of quarantining. They based their claim for relief on the similarities between this case and Thakker v. Doll (found <a href="https://clearinghouse.net/detail.php?id=17460">here</a> in the Clearinghouse), where the court found that the ICE detention centers could not provide adequately safe conditions for the detainees and thereby ordered their release.

On April 7, 2020, Judge John E. Jones III of the federal district court issued a temporary restraining order and granted the immediate release of the 22 plaintiffs. On April 10, the defendants’ Application to Stay all Proceedings Pending Appeal was denied. 

The case was appealed to the the Third Circuit, which vacated and remanded the the decision for a temporary restraining order on August 25, 2020. See Hope v. Warden York Cty. Prison, 2020 U.S. App. LEXIS 26968. The case is ongoing. 