Federal judge finds 'likely' constitutional violation in ICE detention at 2 California facilities

Detainees at Mesa Verde held a hunger strike last week challenging their continued detention in unsafe conditions amid this pandemic. (Kern abolitionist drone)

In an emergency order, a federal judge on Wednesday granted a temporary restraining order in response to a challenge by immigrants detained at two California immigration detention centers where conditions are a perfect storm for the spread of COVID-19. 

The centers are the Mesa Verde Detention Facility in Bakersfield and the Yuba County Jail in Marysville, which together currently hold approximately 400 people in immigration detention. 

U.S. District Court Judge Vince Chhabria did not immediately order a release of those detainees. But he did order a review process to identify people for release in order to enable social distancing inside the centers. Chhabria did provisionally certified a class of all immigrants detained in the two facilities.

And he ordered ICE to provide information to the court about detained immigrants, including their names, ages, medical vulnerabilities and criminal backgrounds -- if any -- to allow for the review of their custody in roughly 14 days. 

"We are one step closer to their release from these dangerous and deplorable conditions," said San Francisco Public Defender Mano Raju, who sued along with the American Civil Liberties Union and a coalition of other lawyers who sued for the release of detainees last week. 

The order recognized that “the conditions of confinement do not merely threaten detainees; they also threaten facility staff, not to mention the greater community whose health is put at risk by the congregation of large groups in cramped spaces.”

This is the first class-action in California challenging conditions of detention filed on behalf of everyone detained at these two facilities. 

This suit was filed separately from one in Southern California, where last week, a federal judge there ordered immigration officials to significantly reduce the number of detainees held at the Adelanto ICE Processing Facility northeast of Los Angeles, the LA Times reported. The judge ordered ICE not to allow any new detainees at Adelanto and to reduce the population by at least 250 people by Thursday. By May 4, ICE should “hit the target reduced population level,” the order says.

“Time is of the essence,”  Chhabria wrote. “The plaintiffs have demonstrated an exceedingly strong likelihood that they will prevail on their claim that current conditions at the facilities violate class members’ due process rights by unreasonably exposing them to a significant risk of harm.” 

The judge also took aim at ICE's approach to its handling precautions surrounding the COVID-19 pandemic.

"Although ICE has recently begun taking modest measures, it is undisputed that the agency has not come close to achieving social distancing for most detainees—for example, people are still sleeping in barracks-style dorms within arms-reach of one another," Chhabria wrote. "What’s more, at the hearing on these motions, counsel for ICE asserted that it will take a significant amount of time for the agency to prepare a list of detainees with health vulnerabilities because it is “burdensome.” The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities."

A spokesman for ICE did not immediately respond to the order. But in court, ICE had argued no one had tested positive for the virus, which the judge noted is "not comforting" seeing as how only two detainees have been tested.

Immigrants at both of these facilities sleep in packed dormitory rooms on bunk beds bolted to the floor only a few feet from each other. They use shared bathrooms, shoulder to shoulder with someone at the next sink and arms length from the next stall. They line up to get meals in crowded cafeterias, and are not provided resources for adequate sanitation and hygiene.

People detained at Mesa Verde held a recent hunger strike challenging their continued detention in unsafe conditions amid this pandemic.

Lawrence Mwuara, a 27-year-old citizen of Kenya and long-time U.S. resident who is detained at Yuba County Jail despite medical conditions which make him vulnerable to severe COVID-19, said in a declaration to the court, “My worst fear about staying in detention during COVID-19 is dying among strangers. 

He added: “I imagine Yuba officials having to contact my family because I have died from COVID-19. Being unable to protect myself from infection here, especially because of my medical conditions, makes me feel like nothing—like dirt.”

The judge noted in his ruling “ICE’s failure thus far to respond meaningfully to the crisis despite the wave of court rulings from around the country documenting the agency’s inaction.” He excoriated ICE for failing to have even a list of medically vulnerable people in detention six weeks after Governor Gavin Newsom shut down the state in light of the health risks of COVID-19.

As of April 11, ICE was holding 32,309 people in custody at 184 facilities spread throughout the United States, according to Syracuse University's Transactional Records Access Clearinghouse. Since March 1, 400 detainees - about 1.2% of the total - have been released, according to ICE's national numbers. 

To date, a federal district judge has ordered the release of at least nine people in Northern California.

As of last week, about 300 detainees and 35 ICE employees at detention centers have tested positive for COVID-19. 

Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@foxtv.com or call her at 510-874-0139. Or follow her on Twitter @ljfernandez