C.G.B. v. Wolf

464 F.Supp.3d 174

C.G.B.,¹ et al., Plaintiffs,

v.Chad WOLF, et al., Defendants.

Case No. 20-cv-1072 (CRC)

United States District Court, District of Columbia.

Signed June 2, 2020

Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, Lynly Egyes, Pro Hac Vice, Transgender Law Center, Brooklyn, NY, Matthew E. Kelley, Ballard Spahr LLP, Washington, DC, Alexa Levy, Pro Hac Vice, Elizabeth Weissert, Pro Hac Vice, Leslie John, Pro Hac Vice, Ballard Spahr LLP, Philadelphia, PA, for Plaintiffs.

Sean Michael Tepe, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Plaintiffs, ten transgender women in the custody of Immigration and Customs Enforcement ("ICE"), have sued the Secretary of Homeland Security and the Attorney General of the United States based on their roles in overseeing the nation's civil immigration detention system. Asserting that their continued detention during the COVID-19 pandemic violates the Constitution and the Administrative Procedure Act ("APA"), Plaintiffs seek an order directing ICE to immediately release all transgender civil detainees across the country and not to detain any additional transgender immigrants until the pandemic ends. Before the Court are: (1) a motion to certify a class of all transgender detainees held in ICE custody, now and in the future; (2) a motion to join two new named Plaintiffs; and (3) an emergency motion for a temporary restraining order. For the reasons that follow, the Court denies all three motions.

I. Background

A. COVID-19 Pandemic

The details of the COVID-19 pandemic are by this point well-known. COVID-19 is a contagious disease caused by the novel coronavirus SARS-CoV-2. Decl. of R. Nick Gorton ("Gorton Decl.") ¶ 3, Pl. Mot. for Temporary Restraining Order ("TRO Mot."), Exh. 14. Although the virus only emerged in early 2020, by March the President of the United States had declared a national state of emergency and the World Health Organization had declared a global pandemic. As of June 1, 2020, there have been 1,761,503 diagnosed cases of COVID-19 and 103,700 deaths in the United States alone. Centers for Disease Control and Prevention ("CDC"), Cases in the U.S. (June 1, 2020).²

Symptoms of COVID-19 vary considerably between individuals. Some who are infected do not display any noticeable symptoms. Gorton Decl. ¶ 6. Others experience fevers, coughs, difficulty breathing, and body aches, although the severity of those symptoms varies. Id. ¶ 4. In a minority of individuals, however, COVID-19 results in serious illness or death. Id. The CDC has identified certain factors that are associated with an increased risk of becoming severely ill: being 65 years old or older, having an underlying medical condition such as a chronic lung disease or serious heart condition, and having a compromised immune system. CDC, People Who Are at Higher Risk for Severe Illness (Apr. 15, 2020).³ Relevant here, being transgender is not one of the CDC-recognized risk factors. See id.; Decl. of Captain Edith Lederman, M.D. ("Lederman Decl.") ¶ 10, TRO Opp., Exh. 8.

COVID-19 is highly contagious. It spreads primarily through person-to-person contact, when people are within six feet of one another. See CDC, How to Protect Yourself & Others (Apr. 15, 2020).⁴ When infected people cough, sneeze, or talk, they produce airborne respiratory droplets that may be inhaled by others standing nearby. Id. People may also contract the virus through contact with contaminated surfaces. See CDC, Cleaning & Disinfection for Households (May 7, 2020).⁵ Symptoms, such as fever, cough, and shortness of breath, typically appear two to fourteen days after exposure. Even those who are asymptomatic are capable of spreading the disease. Gorton Decl. ¶¶ 4, 6. The most effective ways to prevent contracting the virus are to employ social distancing (staying at least six feet away from other people), to wash one's hands frequently, and to cover one's mouth and nose with a mask when around others. See CDC, How to Protect Yourself & Others (Apr. 15, 2020). To date, there is no vaccine or cure for COVID-19.

B. ICE's Response to COVID-19 in Detention Centers

Civil immigration detention centers, which typically house highly transient populations in close quarters, are difficult environments in which to prevent the spread of a dangerous contagion like COVID-19. Recognizing this, ICE and the CDC have taken several steps to contain the virus in detention facilities.

First, ICE has reduced the number of detainees in each of its facilities. On March 18, 2020, ICE announced that its Enforcement and Removal Operations ("ERO") section, which oversees the departure of removable immigrants from the United States, would exercise its discretion to focus enforcement on individuals subject to mandatory detention based on criminal convictions. ICE, Updated ICE Statement on COVID-19 (Mar. 18, 2020).⁶ For other categories of immigrants, ERO would exercise its "discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate." Id. About two weeks later, ICE released guidance instructing the directors of its various field offices to identify detainees held in their facilities who fell within the CDC-recognized high-risk categories and to make individualized determinations regarding their continued custody. ICE, Docket Review Guidance (Apr. 4, 2020).

ICE, in conjunction with the CDC, has also taken measures to prevent the spread of COVID-19 at detention facilities. On March 27, 2020, the CDC published advisory guidance on best practices for correctional and detention facilities ("CDC Detention Facility Guidelines"). CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional & Detention Facilities (Mar. 27, 2020). That guidance recommends that facilities reduce transfers of detainees; perform pre-intake screening for all new entrants; eliminate in-person visits; clean commonly touched areas multiple times a day; provide detainees with free access to soap, running water, paper towels, and tissues; and implement social distancing strategies, such as reassigning bunks to provide more space between detainees and staggering meals. See id. The CDC guidance recognizes, however, that not all of its recommended strategies would be feasible in every facility, as facilities vary in physical layout and available resources. Id.

The same day that the CDC released its Detention Facility Guidelines, ICE issued an "Action Plan" for containing COVID-19. ICE, Mem. on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27, 2020). The plan drew heavily from the CDC guidance, affirming that "[t]he CDC remains the authoritative source for information on how to protect individuals and reduce exposure to COVID-19." Id.

Building on its Action Plan, on April 10, 2020, ICE released a document entitled COVID-19 Pandemic Response Requirements ("PRR"), which includes more definitive measures designed to prevent the spread of COVID-19 in detention facilities. ICE, Pandemic Response Requirements (Apr. 10, 2020). Developed in consultation with the CDC, the PRR "set[ ] forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented[.]" Id. at 3 (emphasis in original). The PRR provide that "all detention facilities housing ICE detainees must ... comply with the following" preventative measures:

• Personal Protective Equipment:

• "Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19."

• Hygiene:

• "Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds[.]"

• "Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles."

• "Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette[.]"

• Cleaning Practices

• "Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response[.]"

• "Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment)."

• Intake Procedures:

• "Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19."

• "If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility."

• "If any new intake has symptoms of COVID-19:

• Require the individual to wear a face mask.

• Ensure that staff interacting with the symptomatic individual wears recommended PPE.

• Isolate the individual and refer to healthcare staff for further evaluation.

• Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care."

• Social Distancing:

• "Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:

• Efforts should be made to reduce the population to approximately 75% of capacity.

• Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.

• Recommend that detainees sharing sleeping quarters sleep ‘head-to-foot.’

• Extend recreation, law library, and meal hours and stagger

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