ACLU suit seeks ICE release 'vulnerable detainees' during pandemic

Sarah Rahal
The Detroit News

Detroit — The ACLU of Michigan filed a federal lawsuit Tuesday calling for the release of detainees held in jails by Immigration and Customs Enforcement in Calhoun, Monroe and St. Clair counties at the height of the COVID-19 pandemic.

The nonprofit says the only way to protect against the illness is to release the detainees that are deemed high-risk, due to age and underlying medical conditions. The ACLU argues that continued detention of medically vulnerable immigrants violates their right to due process.

A jail cell inside the D block of the Macomb county jail, in Mt. Clemens.

Miriam Aukerman, senior staff attorney for the ACLU of Michigan, said social distancing and strict hygiene are virtually impossible in a detention setting.

"Public health experts warn that social distancing is absolutely necessary to limit the spread of COVID-19. But for immigrants locked in detention in close quarters with hundreds of other people, social distancing is not an option," Aukerman said in a statement. "ICE has the responsibility to protect the safety of everyone in their custody. As a first step, ICE should immediately release those who have already been identified by the CDC as being most at risk of serious illness or death if they contract COVID-19. If ICE waits to react to worst-case scenarios, it will be too late."

The suit against ICE was also filed by ACLU’s National Prison Project and Immigrants’ Rights Project, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

It includes testimonies from detainees within the jails including Jose Nicolas Chavez-Vargas, a 50-year-old Mexican national detained at the Monroe County Jail, where he has been held since Feb. 20. He is scheduled for a voluntary departure on April 15.

He came to the U.S. 24 years ago and suffers from high blood pressure and heart disease, which he is supposed to take medication for but has not received it, according to the lawsuit. His fellow detainees are coughing and have only been given access to soap. The lawsuit states that guards only began wearing face masks and gloves on Monday.

"Everyone sleeps in dormitories that house approximately 100 people, with about 50-60 bunk beds per dormitory. The beds are only 3 to 4 feet apart from each other. People continue to eat their meals communally, multiple times per day," the lawsuit states.

At Monroe County Jail, Gener Alejandro Chinchilla-Flores, a 36-year-old Costa Rican national who has been detained since Feb. 25., numerous inmates are coughing and have reported an infestation of maggots.

Flores came to the U.S. 19 years ago and suffers from chronic asthma, but has not been provided with an inhaler, the ACLU says. He was originally scheduled to deport by March 27. ICE has delayed that departure date indefinitely.

Amer Toma, 55, has been detained at the Calhoun County Correctional Facility in Battle Creek since February. He was previously detained at St. Clair County Jail in Port Huron since September.

Toma came to the U.S. 10 years ago as a refugee and sought to stay fearing persecution if he returned to Iraq. He was granted withholding of removal under the Convention Against Torture and is being detained because the government appealed the grant, according to the suit.

His petition is pending before Judge Judith E. Levy, who late Sunday ordered the release of Janet Malam, a British woman who is a plaintiff in the same case and suffers from multiple sclerosis and other conditions.

Toma has three bullets lodged in his body after being shot multiple times during the Iran-Iraq War, suffers from hypotension and was hospitalized two years ago for prostate issues, his attorneys said.

"His unit in the Calhoun detention facility has 56 people and they are rarely six feet away from each other. When eating, he sits at a table with four or six other people two feet from each other," the lawsuit states.

In her 45-page opinion, Judge Levy wrote, "As prison officials are beginning to recognize around the country, even the most stringent precautionary measure — short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease."

ICE also released Ruby Briselda Escobar on Monday. Escobar, born in El Salvador with a heart murmur, had been held at Calhoun County Correction Center since November 2018. She arrived in the U.S. in 2013 and after her release, she hopes to be reunited with her three children who are in foster care, according to the ACLU.

Detroit ICE officials declined to comment on the pending litigation.

In response to this global pandemic, ICE officials said it instructed its field offices to further assess and consider for release certain individuals deemed to be at greater risk of exposure, review cases of individuals 60 years old and older and those who are pregnant.

ICE said it makes custody determinations on a case-by-case basis reviewing criminal records, immigration history, ties to the community and if they pose a risk to public safety. The agency said it continues to re-evaluate all individuals in custody who make up vulnerable populations.

As of March 30, 600 detainees were identified as “vulnerable” and more than 160 have been released from ICE custody, the agency said.

Michigan is one of the epicenters for the coronavirus with the third-highest number of COVID-19 cases in the U.S. The state has 18,970 confirmed cases of the virus and 845 deaths, according to data released Tuesday by the Department of Health and Human Services. 

Joe Kearney, a 55-year-old prisoner housed at the Parnall Correctional Facility in Jackson, was the first prisoner to die from the virus in the state last week. He tested positive for the coronavirus after his death.

The spread of the coronavirus has led to falling jail populations across Michigan. 

On March 1, the Macomb County Jail, capacity 1,234, had a population of 875. By April 1 that had fallen to 548. Wayne County Jail's population fell from 1,381 on March 10 to 997 by April 1. Oakland County Jail fell from 1,282 detainees on March 1 to less than 960 by month's end. 

Wayne County Jail released all prisoners who were not involved in felony cases or thought to pose a threat to public safety, Sheriff Benny Napoleon said Tuesday

The lawsuits include testimony from public health experts Dr. Robert Greifinger and Dr. Jonathan Golob about the current public health crisis and the danger posed by the continued detention of people, confined in close quarters and unhygienic conditions.

"Immigrant detention should not be a death sentence," Jeannie Rhee, lead counsel for the law firm, said in a statement. "Jails are not designed or equipped to handle this extraordinary public health crisis. Michigan already has one of the highest number of COVID-19 cases in the nation. ICE’s failure to act now will surely contribute to the spread of this virus throughout the state, as well as needless and avoidable loss of life."

Twitter: @SarahRahal_