Angelica C. v. Immigration & Customs Enf't

ANGELICA C., et al., Petitioners, v. IMMIGRATION AND CUSTOMS ENFORCEMENT; PETER BERG,Head of Immigration and Customs Enforcement; and WILLIAM BARR,United States Attorney General, Respondents.

Case No. 20-cv-913 (NEB/ECW)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 5, 2020

REPORT AND RECOMMENDATION

This matter is before the Court on Petitioners' Motion for Declaratory and Injunctive relief (Dkt. 4) ("Motion"). Petitioners move pursuant to Federal Rule of Civil Procedure 65(a) and (b) for a temporary restraining order ("TRO") or for a preliminary injunction requiring Respondents to release Petitioners from their present detention on bond at either Kandiyohi County Jail or Sherburne County Jail or that the Court conduct a bail hearing. The case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.

Briefing was complete on the Motion on May 5, 2020. (See Dkts. 6, 14, 25, 31; see also Dkts. 11, 29 (establishing briefing schedule).) At the request of the parties, the Court held a status call on May 7, 2020, and ordered the parties to file a joint status report two business days after U.S. District Judge Nancy E. Brasel issued an order on then-pending objections in Mohammed S. v. Immigration and Customs Enforcement, Case No. 20-cv-793 (NEB/ECW) (D. Minn.), another case in which immigration detainees sought release from Sherburne County Jail based on COVID-19 concerns. (Dkt. 39.) In Mohammed S., the undersigned recommended denial of the petitioners' motion for preliminary injunction. Mohammed S. v. Tritten, No. 20-CV-793 (NEB/ECW), 2020 WL 2750836, at *3 (D. Minn. Apr. 28, 2020). On May 14, 2020, Judge Brasel issued an order in Mohammed S. adopting the undersigned's recommendation that the petitioners' motion for preliminary injunction be denied. Mohammed S. v. Tritten, No. 20-CV-783 (NEB/ECW), WL 2488088 (D. Minn. May 14, 2020), amended and superseded by 2020 WL 2750109 (D. Minn. May 27, 2020). The parties filed their joint status report asking to end all briefing in this matter and to submit Petitioners' motion for injunction relief on the papers with no oral argument. (Dkt. 40.) The Court issued an order stating it would decide the Motion on the papers. (Dkt. 41.) For the reasons discussed below, the Court recommends that the Motion be denied without prejudice.

I. BACKGROUND

A. The COVID-19 Pandemic

COVID-19 is the disease caused by the novel coronavirus SARS-CoV-2. See Ctrs. for Disease Control & Prevention, Infection Control Guidance (last visited June 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html. COVID-19 has become a global pandemic and around the time Petitioners initially filed this action Minnesota had 1,809 confirmed cases of COVID-19 and 87 deaths. See MN Dept. of Health, Situation Update for Coronavirus Disease 2019 (COVID-19), (last visited April 15, 2019), https://www.health.state.mn.us/diseases/coronavirus/situation.html. As of the date of this Report and Recommendation, there are 26,980 confirmed positive cases with 1,148 deaths in Minnesota; Sherburne County has 249 confirmed cases with 2 deaths; and Kandiyohi County has 514 confirmed cases with 1 death. See MN Dept. of Health, Situation Update for Coronavirus Disease 2019 (COVID-19), (last visited June 5, 2020), https://www.health.state.mn.us/diseases/coronavirus/situation.html.

There is currently no vaccine for prevention of COVID-19 infections. See Ctrs. for Disease Control & Prevention, Protect Yourself (last visited June 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. In addition, the CDC has represented that there "is no specific antiviral treatment recommended for COVID-19." Id., What to do if you are Sick, (last visited June 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-whensick.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fabout%2Fsteps-when-sick.html.

According to The Centers for Disease Control and Prevention ("the CDC"), individuals with the following conditions or living in the following circumstances are at high risk for severe illness from COVID-19:

• People 65 years and older;

• People who live in a nursing home or long-term care facility;

• People of all ages with underlying medical conditions, particularly if not well controlled, including:

? People with chronic lung disease or moderate to severe asthma;? People who have serious heart conditions;

? People who are immunocompromised, where many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications;

? People with severe obesity (body mass index ("BMI") of 40 or higher);

? People with diabetes;

? People with chronic kidney disease undergoing dialysis; and

? People with liver disease.

See Ctrs. for Disease Control & Prevention, People Who Are at Higher Risk for Severe Illness (last visited June 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.

COVID-19 is transmitted person-to-person by respiratory droplets or by touching contaminated surfaces. See Ctrs. for Disease Control & Prevention, Infection Control Guidance (last visited June 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html. One of the major challenges in stopping the spread of COVID-19 is that people with no symptoms can spread the virus to others. (Id.) Indeed, Respondents, relying on the CDC, acknowledges that "[t]here is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms." U.S. Imm., and Customs Enforc. ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), (last visited June 5, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. The CDC has recommendedthat "[m]aintaining good social distance (about 6 feet) is very important in preventing the spread of COVID-19." See Ctrs. for Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited June 5, 2020).

B. ICE

There have been 818 confirmed cases of COVID-19 among those currently in ICE custody throughout the United States. See U.S. Imm., and Customs Enforc., ICE Guidance on COVID-19 (last visited June 5, 2020), https://www.ice.gov/ coronavirus.

The CDC has recognized that because detention centers integrate custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting, they present unique challenges for the control of COVID-19. See Ctrs. for Disease Control & Prevention, Guidance for Correctional & Detention Facilities (last visited June 5, 2020) (https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html). With respect to preventing the introduction and spread of COVID-19 in detention facilities, the CDC recommends that a number of steps be taken at such facilities including: restricting or suspending the transfers of detained persons and to subject any transfers to medical isolation to evaluate if COVID-19 testing is appropriate; quarantining all new inmates for 14 days before they enter into the general population; cleaning and disinfecting surfaces that are frequently touched multiple times per day, including the use of disinfectants effective against the virus; increasing the number of staff or detained persons trained and responsible for cleaning the common areas to ensure cleaning of theareas throughout the day; providing detainees, at no cost, with soap, running water, and hand drying machines or paper towels; implementing social distancing strategies to increase the physical space between each detained person, ideally 6 feet between all individuals, which should include staggering meal and recreation times, and reassigning for bunking; and medically isolating confirmed or suspected COVID-19 cases.¹ (Id.) With respect to staff, the CDC recommends that staff stay home if they are sick and perform daily temperature checks for staff. (Id.)

In addition, ICE's Enforcement and Removal Operations ("ERO") has issued COVID-19 Pandemic Response Requirements, which requires non-dedicated ICE detention facilities to comply with the CDC's interim guidance. See U.S. Imm., and Customs Enforc. ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), (last visited June 5, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. ERO requirements also provide that cloth face coverings should be worn by detainees and staff. (Id.) Similar to CDC guidelines, detention facilities are to provide detainees and staff with no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand dryingmachines or disposable paper towels, and no-touch trash receptacles. (Id.) Screening should take place before staff and new intakes enter the facility (or just inside the facility), including visual and temperature checks. (Id.) As it relates to social distancing, ERO recommends efforts at reducing facility population to 75% of capacity, housing detainees in individual rooms to the extent possible, staggering access to recreation and mealtimes, avoiding congregating in groups of ten or more, and maintaining a distance of six feet. (Id.)

In March 2020, ERO convened a working group between medical professionals, disease control specialists, detention experts, and field operators to identify additional enhanced steps to minimize the spread of the virus. (Id.) ICE has "since evaluated its detained population based upon the CDC's...