Rivas v. Jennings

465 F.Supp.3d 1028

Angel De Jesus ZEPEDA RIVAS, et al., Plaintiffs,

v.David JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC

United States District Court, N.D. California.

Signed June 9, 2020

Martin S. Schenker, Cooley LLP, Angelica Salceda, Emilou MacLean, Sean Connor Riordan, William S. Freeman, ACLU of Northern California, Inc., Bree Ann Bernwanger, Pro Hac Vice, Hayden Miles Rodarte, Lawyers' Committee for Civil Rights of the San Francisc, Francisco Ugarte, Jennifer Taylor Friedman, Genna Ellis Beier, San Francisco Public Defenders Office, San Francisco, CA, Amalia Margarete Wille, Judah Ben Lakin, Lakin & Wille LLP, Oakland, CA, Francisco Unger, Pro Hac Vice, Timothy W. Cook, Pro Hac Vice, Cooley LLP, Boston, MA, Jordan Samuel Wells, ACLU of Southern California, Los Angeles, CA, Stephanie Padilla, ACLU of Southern California, Bakersfield, CA, for Plaintiffs.

Adrienne Zack, United States Attorney's Office, San Francisco, CA, Shining J. Hsu, Shiwon Choe, Wendy M. Garbers, United States Attorney's Office, San Francisco, CA, for Defendants David Jennings, Matthew T. Albence, US Immigration and Customs Enforcement.

Wendy M. Garbers, United States Attorney's Office, San Francisco, CA, for Defendant Nathan Allen.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. 229

VINCE CHHABRIA, United States District Judge

Seven weeks ago, ICE detainees at Mesa Verde Detention Center and Yuba County Jail filed this class action alleging the facilities were so crowded that any kind of social distancing—the primary available defense against Covid-19—was impossible. They also alleged that ICE had taken virtually no meaningful steps to reduce the risk of outbreak at either facility. This, according to the plaintiffs, rendered their detentions unconstitutional.

After full briefing and a hearing, this Court provisionally certified a class of all detainees at the two facilities and entered a temporary restraining order. Zepeda Rivas v. Jennings , 445 F. Supp. 3d 36 (N.D. Cal. Apr. 29, 2020) (Dkt. No. 53). The TRO required ICE to give the Court and class counsel information about all the detainees, including any criminal history and any health vulnerabilities putting them at heightened risk. The TRO also established a system for the Court to consider, on an ongoing basis and with the assistance of briefing from both sides, whether certain detainees should be temporarily released to help mitigate the dangerous conditions in the facilities. This system contemplates that no detainee may be released unless class counsel demonstrates "extraordinary circumstances justifying release while the habeas petition is pending, based on a consideration of the following factors: (i) the likelihood that the class will ultimately prevail on its habeas petition; (ii) the risk posed to the detainee by current conditions at the facilities; (iii) the likelihood that the detainee will not be a danger to the community if released with conditions; and (iv) the likelihood that the detainee will appear for subsequent immigration/removal proceedings as required." Dkt. No. 50.

The plaintiffs have now moved for a preliminary injunction. The motion is granted, but the injunction will be far narrower and less intrusive than what the plaintiffs request. This ruling assumes that the reader is familiar with the TRO ruling, and the analysis from that ruling is incorporated here.

I

When this lawsuit was filed, governments and public health officials throughout the country had long since recognized the urgent danger posed by the coronavirus pandemic. Indeed, nearly five weeks had passed since Governor Newsom ordered a statewide shutdown that forced massive changes in the daily lives of virtually all Californians. But for the ICE detainees at Mesa Verde and Yuba County Jail, it was pretty much business as usual. People were still sleeping in barracks-style dorms within arm's reach of one another. Only two detainees had been tested for Covid-19, despite the well-known "tinderbox" risk of jail epidemics. It appeared that ICE had not even made the effort to determine which of its detainees suffer from medical conditions that put them in particularly severe danger from the virus.

Since the TRO, substantial progress has been made. The number of detainees in custody at both facilities has dropped, which has allowed for a greater degree of social distancing. For example, Mesa Verde has been able to stagger meals, limiting each dining table to a single detainee at a time. More than half the bunks in each Mesa Verde dorm are now empty, so the detainees sleep at alternating bunk-bed levels (with heads on alternating sides of the bed). The conditions in the facilities are hardly ideal, but they have indisputably improved. Subject to a few caveats discussed in the next section, it's possible that the facilities have gotten close to the point where keeping certain detainees there (those who are a danger to the community or whose detention is otherwise necessary even in the face of the risks posed by the pandemic) does not create an unreasonable risk for the class in violation of due process.

However, these safety improvements came almost entirely from this litigation: ICE acted only because it was ordered to do so, or in response to concerns raised by the Court or the plaintiffs during the proceedings. Since the TRO, the parties have participated in eight status conferences, and ICE has been required to provide the Court and class counsel with a steady stream of information. Throughout this process, ICE has shown disinterest and a lack of dexterity in adjusting its conduct to respond to a global crisis, along with obstinance in evaluating whether any of its detainees can safely be temporarily released.

Take, for example, the bail process implemented in the wake of the TRO. On a schedule set by the Court, class counsel has submitted nearly two hundred requests for temporary release of individual detainees, subject to strict conditions such as identifying a custodian whom ICE can vet, observing a 14-day quarantine, and submitting to GPS monitoring. The population reduction in the facilities appears to have been accomplished largely by temporary releases ordered pursuant to this process, with 95 detainees having been ordered released.¹ But invariably, ICE argues that the detainee in question should not be released because they pose a danger to the community or are a flight risk. To be sure, reasonable minds can differ on some of these release applications; indeed, the Court has denied release for 79 detainees, mostly out of concern that they would be a danger to the community. See, e.g. , Order re Domestic Violence, Dkt. No. 224. But ICE's insistence on opposing these bail applications on a blanket basis has led it to take some positions that are downright irrational, not to mention inhumane.

One example was Jose Luis Lopez-Guevara. Mr. Lopez-Guevara is 78 years old, walks with a cane, suffers from numerous chronic health conditions, and underwent heart surgery in March while in ICE custody. See Dkt. No. 66. Back in 1980, Mr. Lopez-Guevara was convicted of second-degree murder for shooting an acquaintance in the heat of argument, but was granted parole in 2019 after 38 years in custody when the parole board found (with Governor Newsom's assent) that he poses no threat to the community due to his age, overall criminal history, and substantial evidence of self-improvement and rehabilitation. Following the grant of parole, ICE took Mr. Lopez-Guevara into custody pending deportation and had been holding him for nearly a year. In his request for temporary release from ICE custody, Mr. Lopez-Guevara explained that if released he would stay with his son Henry, a decorated U.S. Marine, and Henry's wife, a registered nurse, in their five-bedroom house in Santa Clarita, in accordance with his approved parole plan. ICE opposed his release.

Or take Jennifer Lara Plascencia, a woman with a single conviction for wire fraud arising from improper use of her company's credit card. See Dkt. No. 72-4. Her numerous medical conditions had landed her in the emergency room multiple times during her detention at Mesa Verde, and she sought temporary release to stay in Chula Vista with her husband, a U.S. military servicemember, and their 20-month-old U.S. citizen son. ICE opposed her release. Similarly, Victor Fierros Hurtado, a man with a single misdemeanor drug conviction from 2001, sought to be temporarily released to stay with his wife and three U.S. citizen children at their family home in Vallejo. See Dkt. No. 128-4. ICE opposed his release.

To be sure, ICE has released a relatively small number of people into the community without waiting for an order from this Court. But those decisions are, at least in large part, just as much a product of this litigation. For example, ICE has now taken the seemingly obvious step of releasing all remaining women from Mesa Verde—virtually none of whom appeared to have histories suggesting they were a danger to the community—to allow the male detainees to be spread out into the women's dorm. But this measure came in response to questions posed by the Court during a status conference about why ICE was tying up an entire 100-bed dorm with a small number of women with little or no criminal record. In the many weeks prior, ICE either hadn't thought of this or was too indifferent to make the effort.

In arguing that no further judicial intervention is necessary to address conditions in its facilities, ICE has also made at least one misrepresentation to the Court about a matter of great importance. A critical safety issue is how new arrivals to the facilities are processed and checked for Covid-19. In opposing the plaintiffs' motion for a preliminary injunction, ICE filed a declaration from Alexander Pham, an ICE official responsible for oversight of Mesa Verde. Mr. Pham declared under oath: "All new arrivals transferred from another facility where there are any reported ...