- On Monday, a federal district court judge ordered seven aliens, whom he had earlier ordered released from three ICE contract detention facilities in Pennsylvania due to concerns about their health in light of the Wuhan coronavirus, returned to ICE custody.
- He found that health precautions instituted in two of those facilities enabled those facilities to effectively control transmission of the Wuhan coronavirus.
- The judge still had concerns about the ability of the third facility to control the spread of the disease, but nonetheless ordered one of the detainees released from that facility to return there given the alien's criminal record, concluding "the public interest in preventing violent assaults outweighs the lessened risk" of transmission of the Wuhan coronavirus to the alien "due to the greatly enhanced infectious disease prevention measures now in place within" that facility.
- This order underscores that immigration detention is not inherently dangerous — even in the face of the Wuhan coronavirus pandemic — and, that, notwithstanding the challenges detention facilities face to control that disease, some aliens are simply too dangerous to be released.
In recent weeks, Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania has ordered a number of ICE detainees released in response to concerns about the Wuhan coronavirus. Yesterday, in response to health and safety measures that have been implemented at facilities in which some of those detainees were held, he ordered some of them to return to custody, balancing the health risks they faced with the government's "legitimate interest in" immigration detention.
On March 31, Judge Jones issued a temporary restraining order (TRO) pursuant to which he directed that 10 named petitioners be released from ICE custody. The 10 aliens were being held in ICE detention at three separate facilities: York County Prison (YCP), Clinton County Correctional Facility (CCCF), and Pike County Correctional Facility (PCCF), all of which are in Pennsylvania. On April 13, he extended that order for 14 days.
On April 27, he issued a memorandum and order on the question of whether to convert that TRO into a preliminary injunction. Judge Jones, commending those facilities for "implementing  effective procedures that have largely alleviated" his "previous concerns", noted that:
At the time of our writing nearly one month ago, it was reasonable to posit that it would only be a matter of time before COVID-19 decimated our prison populations. Thankfully, that feared outcome has generally not come to pass, largely due to the quick actions of Facility officials.
He detailed those "effective procedures" in his memorandum. Specifically, YCP, which has a capacity of 2,245 inmates, now houses only 1,376 inmates and detainees, "mak[ing] social distancing in this environment far more practicable" there. Many staff (including all of the medical staff) at YCP now wear N95 masks, and detainees in the kitchen and kitchen staff wear surgical masks, as do all detainees in transport.
All incoming inmates at YCP are screened for Wuhan coronavirus on intake and those who potentially have the virus are sequestered, while asymptomatic detainees who have been exposed are quarantined for 14 days. Staff and vendors are screened when they enter, and YCP conducts roving temperature checks and screening. Sanitation and cleaning have been increased and expanded.
The judge held:
Indeed, these enhanced procedures are working. YCP reports only one case of COVID-19 as of the date of this writing, which was confirmed on March 30, 2020. ... The individual has been in quarantine since that time in a negative pressure isolation room under medical observation. ... Given that more than two weeks has passed since the beginning of the individual's quarantine, we can safely assume that YCP's protocols have effectively prevented the transmission of COVID-19.
I wrote previously about that one detainee in an April 6 post: "Detention Health Care Works the Way It Is Supposed To: York, Pa., detainee tests positive for the Wuhan virus". Judge Jones concluded that because of the changes implemented at YCP "and the evidence that they are able to effectively control transmission from COVID-positive inmates", detainees who had been previously held there were now not likely "to succeed on the merits of their claims" and ordered them returned to ICE custody.
CCCF has capacity to detain 298 inmates, but is currently housing only 153, improving their ability to social distance. Transport and intake officers must wear N95 masks and goggles, and all staff must wear masks in the secure portions of CCCF. The facility has added 20 hand sanitizer stations for detainees and staff, and soap, water, and disinfectants are available in each housing unit. All of the detainees have at least two washable masks, which they are encouraged to wear. As at YCP, there is increased sanitation at CCCF.
The judge found: "These enhanced practices are working. CCCF reports no confirmed cases of COVID-19 as of the date of our writing." Consequently, he ordered the detainees previously released from CCCF back into ICE custody.
PCCF presented a different scenario, at least in Judge Jones' mind. That facility, which has a capacity of 375 inmates, houses 250, and detainees share cells. That said, the facility has a modified lockdown schedule, and detainees can only leave their cells on a staggered schedule to promote social distancing. In addition, meals are delivered to the detainees' cells, staff are required to wear masks and conduct daily temperature checks and screenings, and ICE has issued 500 masks to facility for use by the detainees.
If a detainee at PCCF has symptoms, that detainee and any cell mates are placed into quarantine. Staff and vendors are screened, and sanitation efforts have increased. That said, however, the judge noted that 40 staff members and inmates have been confirmed with the virus (the status of which is not stated, but 12 of them are quarantined), and two individuals (apparently county inmates, not ICE detainees) have died.
Judge Jones found: "These numbers show that there has been a sustained outbreak at PCCF, and that it has not yet been controlled." Significantly, he granted the preliminary injunction with respect to three of the four petitioners at PCCF, but not the fourth. With respect to that alien, the judge found that "despite the elevated risk [that petitioner] faces from reinstated detention at PCCF, he poses a high level of risk to the public good due to his violent history."
The alien in question, a 52-year-old Mexican national, has convictions for DUI, disorderly conduct, and simple assault, the latter resulting from "a domestic violence incident during which Petitioner assaulted his wife in front of his children". Notwithstanding the fact that the petitioner has diabetes and an ulcer, the judge held "the public interest in preventing violent assaults outweighs the lessened risk COVID-19 will pose to [the petitioner] due to the greatly enhanced infectious disease prevention measures now in place within PCCF."
That alien and the six detained in YCP and CCCF, respectively, were ordered to report to surrender themselves at the institutions from which they were released by Tuesday at 4:00 p.m. Whether they actually showed up is a different issue.
What this matter underscores, however, is that immigration detention is not inherently dangerous, even in the wake of the Wuhan coronavirus pandemic. And that, notwithstanding the challenges detention facilities face in light of that disease, some aliens are simply too dangerous to be released.