Judge frees 2 ICE detainees: 'COVID-19 does not respect prison walls'

Melissa Nann Burke
The Detroit News

A federal judge in Michigan ordered the release Tuesday of two "medically vulnerable" immigrant detainees held at the Calhoun County jail, finding they faced a high risk of harm from COVID-19 due to underlying conditions. 

"COVID-19 does not respect prison walls. The raging global pandemic outside of Calhoun County Correctional Facility and a confirmed case within the facility pose a serious risk to those inside," U.S. District Judge Judith E. Levy wrote.  

Levy granted a preliminary injunction sought by the American Civil Liberties Union of Michigan ordering the immediate release of Qaid Alhalmi and Tomas Cardona Ramirez "for the duration of the COVID-19 state of emergency in Michigan or until further court order."

But Levy, who serves on the U.S. District Court for the Eastern District of Michigan, declined to order the release of two other detainees at Calhoun, Rodriguez Salabarria and Rosales Borboa, asking attorneys for further information about their health conditions. 

U.S. Immigration & Customs Enforcement had confirmed 881 cases of COVID-19 among those in its custody nationwide as of Tuesday, and 42 cases among detention center employees.

An attorney for ICE on Monday notified the court of the first known case at the Calhoun facility, which is ICE's largest detention site in Michigan with approximately 130 immigrants detained there, according to the the American Civil Liberties Union, which represents the plaintiff detainees in the case. 

"For plaintiffs, the emergence of COVID-19 at the Calhoun County Correctional Facility transforms a generalized yet substantial risk into a specific and immediate risk," Levy wrote, noting the rapid spread of the disease in other jails and prisons. 

"The number of COVID-19 cases in detention facilities nationwide further highlights the stark reality that communal confinement, even with the precautions defendants have employed, creates a significant risk of COVID-19 infection."

Levy said it was the seventh time her court has assessed the constitutionality of continued detention of medically vulnerable immigrant civil detainees at the Calhoun facility during the coronavirus pandemic.

In five prior opinions in the case, she held that although there was then no current COVID-19 outbreak at the Calhoun facility, the detainees nonetheless faced a high risk of infection from COVID-19 "in the coming weeks, months, and possibly years."

U.S. District Judge Judith Levy

Alhami, a 54-year-old Yemeni citizen, was in custody since September and charged with overstaying his visa. He has Type-2 diabetes and takes medication daily and requires tests four times a day to monitor his insulin level. 

Ramirez, 37, of Guatemala suffers from Type-1 diabetes, hypertension and hyperlipidemia, each of which requires daily medication, according to court records. He had been in the custody of ICE since January. 

The ACLU had argued during a hearing by video conference last week that due to the health risk, all four medically vulnerable detainees should have been released to fight their immigration cases at home under quarantine. 

The ACLU's lawsuit, filed last month, proposes a class action on behalf of all non-citizens held in the custody of ICE at the Calhoun jail, arguing that continued detention under the conditions at the facility during the pandemic violates their right to due process.

At the hearing last week, lawyer Jennifer Newby represented ICE and said the agency has taken "reasonable" steps to mitigate the risk to all detainees posed by the virus and those protocols are sufficient. 

"The court commends defendants for taking what precautions they have, but the record before the court indicates that at the Calhoun County Correctional Facility, precautionary measures may exist as policy only," Levy wrote. 

The judge cited an epidemiologist, Dr. Homer Venters, who opined that adequate social distancing at Calhoun is "impossible, access to sanitation and personal protective equipment is scarce, rules regarding the use of masks for staff are lax or nonexistent, and ICE and (Michigan Department of Corrections) are testing neither asymptomatic detainees nor all detainees who present with symptoms." 

Levy noted that the Centers for Disease Control and Prevention recognizes diabetes as a factor that increases the risk of serious complications from COVID-19, including death.

Thus, Levy concluded, both Alhalmi and Ramirez are at "high risk of irreparable injury" were they to contract the disease. 

Levy rejected an argument from Newby that the mere risk of infection could not justify a finding that the plaintiff detainees would succeed on the merits of their argument because the risk is not "imminent."

Newby made her argument when there were no COVID cases at Calhoun. But Levy said it would "almost be absurd" to suggest that a prisoner needs to wait until a fire breaks out at the jail to allege an irreparable injury.

As part of the analysis required under case law, Levy also weighed whether society considers the risk to prisoners to violate “contemporary standards of decency.”

Newby had suggested the detainees couldn’t meet that requirement in places where leaders have begun reducing restrictions and subjecting society at large to the "same" COVID-19 exposure risk.

Levy called the argument “misguided,” pointing to large swaths of the country that remain locked down; the 48,000 COVID-19 cases and nearly 4,700 deaths from the illness in Michigan; and Gov. Gretchen Whitmer’s recent extension of her stay-home order.

Even places like Georgia, where restrictions have been relaxed, protections continue for medically vulnerable people, Levy said.

Also, the plaintiff detainees aren’t at the same risk of exposure to the virus as the general population, the judge added, as they’re in “communal confinement.”

“Defendants cannot show that society would tolerate plaintiffs’ exposure to COVID-19,” Levy concluded. “To suggest that the public would tolerate this risk demeans plaintiffs’ dignity and humanity.”

She said Alhalmi and Ramirez are subject to 14 days of home quarantine upon their release; that they must comply with all Michigan executive orders; and appear at all hearings pertaining to their removal proceedings.