Attorneys for immigrant detainees at a Calhoun County lockup argued Thursday that their clients are at high risk for infection with COVID-19 or death due to underlying medical conditions and should be released to fight their cases at home under quarantine.

A lawyer defending U.S. Immigration and Customs Enforcement said the agency has taken steps to mitigate the risk to all detainees posed by the novel coronavirus and those protocols are sufficient, even if there’s some remaining risk.  

"We are taking reasonable steps. The question of whether they’re always being followed is a separate issue and not before the court," Assistant U.S. Attorney Jennifer Newby said during a Thursday hearing. 

U.S. District Judge Judith Levy heard the arguments via Zoom video conference to consider the plaintiffs' request for a temporary restraining order to safeguard the health of immigration detainees. 

The hearing stems from a class action lawsuit filed by the American Civil Liberties Union of Michigan this spring, claiming that continued detention of medically vulnerable immigrants at Calhoun during the pandemic violates their right to due process. Their clients' conditions include asthma, hypertension and diabetes.

ICE has confirmed 705 cases of COVID-19 among those in its custody nationwide, but none to date are known at the Calhoun facility. 

"Being an immigrant shouldn’t be a death sentence," said Miriam Aukerman, a senior staff attorney for ACLU of Michigan. 

"People who are at the greatest risk should be able to go home, quarantine and be safe while they fight their immigration cases so they don’t suffer serious injury or death."

Jonathan Silberstein-Loeb, representing the plaintiff detainees, said even if the facility lives up to the coronavirus guidelines issued by the Centers for Disease Control and Prevention for prisons and jails, there is still an "unreasonable risk of harm" and that ICE is intentionally subjecting detainees to this risk.

He said, no matter what steps are taken by ICE, there is no communal holding facility in which his clients could be incarcerated during the pandemic that would be constitutional, due to their underlying health conditions.

"This is not a claim about the adequacy of the measures," he said. "Plaintiffs' claims are in challenge to the continued validity of confinement." 

Newby, representing ICE and the U.S. Department of Homeland Security, said ICE is working to reduce the risk of infection among detainees by improving hygiene and increasing social distancing to the extent possible in high-density environments.

"Certainly, no one is making the argument that we can ensure six feet of distance at all times, but that's again holding us to the optimal standard," she said. 

"If we are doing as much as we can do in this setting for social distancing, or at least a substantial part of what we can do, then we're not deliberately indifferent." 

Levy asked Newby whether the Calhoun County Correctional Facility was taking mitigation steps specifically for the medically vulnerable, such as providing single-person cells for them.

Newby said she did not believe Calhoun as a policy houses the medically vulnerable by themselves.

"There are protocols in place at Calhoun to protect everyone. I don't know that there are specific procedures aimed only at protecting the medically vulnerable," Newby replied. 

Levy referenced allegations about heightened risk due to lack of social distancing, "extremely close" sleeping quarters, lack of access to hand washing, sanitizing supplies and masks for detainees. She also asked about standards for use of gloves and masks by security personnel. 

"Each of the plaintiff reported exactly the same thing," Levy said. 

"Your honor ... we would say that people not following the policy does not create deliberate indifference. The question before the court right now is the policy itself," Newby said. "Our policy does require that they have hand soap, does require that they have disinfectants to clean their rooms."

She said surgical-grade masks are provided to all detainees for use when they travel outside of the housing unit, and they're permitted to wear the masks within the housing unit. Staff members also have masks and are required to wear them, she added. 

Silberstein-Loeb said the issue isn't a "rogue guard" refusing to provide masks.

"The issue is that the facility is not getting the equipment that is needed for implementing the policy," he said.

"It's not just the policy. It's the implementation of that policy, and it's having the protective gear sufficient to adhere to that policy that's an issue."

Levy said she would issue a written decision on the motion "as soon as I can."

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