Immigrant Rights on the Docket

Prieto-Refunjol, et al. v. Adducci

Status:
Active
Case Dates:
Friday, 24 April, 2020 - ongoing
Facts:

In the Southern District of Ohio, ICE contracts with the Morrow and Butler county jails to imprison federal immigration detainees. Between them, these two jails were holding over 100 ICE detainees at the beginning of the pandemic. The jails were doing no testing and taking almost no precautionary measures against spread of the contagion should the disease enter the facilities. Meanwhile, many of the people detained were elderly or had other comorbidities that put them at excessively high risk if they contracted COVID-19, including, e.g., diabetes, hypertension, and asthma. If these people became sick—which was very likely once the virus entered the facility, given its virulence and the difficulty of suppressing contagion in a congregate environment—they could have long-term health ramifications or die. Although ICE had published internal guidance directing field offices to perform reviews and consider administrative release of high-risk people, the field office with jurisdiction over Ohio released zero people voluntarily. The few detainees, in Michigan, that had been released resulted from federal litigation.

Originally. we represented three people detained at the Morrow and Butler jails who were at high risk of contracting COVID-19 once the virus entered the jails. At the time we filed suit, there had been one case detected at Butler. But within one week of our filing, Morrow jail suddenly became the locus of an outbreak; almost everyone there became COVID-19 positive. We undertook representation of 20 additional people detained at Morrow – with and without relevant comorbidities – after they were repeatedly denied medical care necessary to shield them from the virus’s worst outcomes. The situation at Morrow was unconscionable: temperatures were being taken with expired thermometers, indicating that feverish people were hypothermic; people could not call 911 from the inside and the jail cancelled ambulances dispatched from the outside; people were hospitalized only after entire dorm populations had begged for hours because a person has collapsed or turned blue. During the litigation, one person died from COVID-19 complications after his release from Morrow. ICE has not released anyone to the community without litigation, except for the man who died, Oscar Lopez Acosta.

Legal Theory:

Detention of civil detainees who are at heightened risk of serious illness or death if they contract COVID-19 is unconstitutionally punitive under the Fifth Amendment. The appropriate remedy is 28 U.S.C. Sec. 2241, habeas corpus release. Detention of COVID-19-positive comorbid people in conditions where they cannot access medical treatment violates the Fifth Amendment and the appropriate remedy is release.

Status:

On April 24 we filed our original Complaint and Petition for Writ of Habeas Corpus along with a motion for temporary restraining order in the United States District Court for the Southern District of Ohio on behalf of three ICE detainees held at the Morrow and Butler county jails. In this case, we argued that each Petitioner had a comorbidity (asthma, immunosuppression, and hypertension) that put them at high risk of serious illness or death if they contracted the virus. The TRO was granted on April 27 after an emergency hearing, and all three Petitioner-Plaintiffs were ordered released.

On May 5 we filed an amended petition and complaint with a new TRO, adding 20 new plaintiffs, this time under a theory of medical negligence that rose to the level of constitutional release, in addition to the risk theory. The court denied the new TRO without prejudice on May 7.

Respondents filed their opposition to the original Writ on May 6, and their Answer, Response, Motion to Dismiss, or Motion for Summary Judgment addressing both Writs as a single document on May 11. On May 14 the court held an evidentiary preliminary injunction hearing by video to determine whether to release the new Petitioners, and whether to continue the release of the original Petitioners. After the hearing, on May 14, the Court ordered the release of 11 of the new Petitioners, finding they were at high risk of serious long term illness or death from COVID-19 because of the jail and ICE’s inability to provide them access to medical care. The Court found that 7 of the new Petitioners were not at high risk medically. Additionally, the Court ordered the continued release of two of the original Petitioners, but ordered the third original Petitioner, Mory Keita, re-detained, finding he had not met his evidentiary burden to prove his medical risk. In the meantime, ICE had administratively released two Petitioners.

On May 27 we moved for reconsideration regarding Mr. Keita. Respondents opposed on May 29. On June 5 the court denied our motion.

Since the preliminary injunction decision, ICE has deported over a dozen people from the jail including all but three of our still-detained clients. ICE has also threatened others with deportation. We continue to work on securing or maintaining release for our clients, connecting them with immigration counsel, or assisting them in whatever way possible.