"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Elizabeth Jordan Esquire Director, Immigration Detention Accountability Project (IDAP)
Hi everyone,
I am pleased to report that we, along with co-counsel SPLC, DRA, Orrick, and Willkie, just got the attached order on our motion to enforce our Fraihat COVID preliminary injunction. We are working on developing guidance for detained folks, their families, advocates and allies. We encourage you to read it through if you’re interested because there are a lot of gems in there, but did want to flag these four big takeaways ASAP:
Defendants shall mandate more widespread and regular testing of medically vulnerable people, consistent with CDC guidelines and above the level provided by the BOP and state prisons.
Defendants shall mandate that medical isolation and quarantine are distinct from solitary, segregated, or punitive housing, that extended lockdowns as a means of COVID-19 prevention are not allowed, and that access to diversion and to telephones must be maintained to the fullest extent possible.
Defendant shall provide more protective, and more concrete, transfer protocols to protect medically vulnerable people, including a suspension of transfers with a narrow and well defined list of exceptions consistent with CDC guidance.
On custody redeterminations, blanket or cursory release denials are prohibited. Only in rare cases should a medically vulnerable detained individual who is not subject to mandatory detention remain detained, and any exceptions must be supported by specific justifications. With respect to people who are subject to mandatory detention, defendants must perform an individualized assessment, and should only continue to be detained after consideration of the risk of severe illness or death, with due regard to the public health emergency.
Many thanks to the many of you on these various lists for your reporting of on-the-ground conditions and results of release requests for class members, for evidence you provided in support of this motion, and for your thought partnership and tireless advocacy on these issues. Free them all!
Congrats, Liz, and thanks for all you do for American justice!
This sentence from Judge Bernal’s order says it all about the Trump ICE kakistocracy:`
Defendants have established a pattern of noncompliance or exceedingly slow compliance that calls for more active Court monitoring than has heretofore been the case.
What if we had an independent U.S. Immigration Court with judges who had demonstrated due process and human rights expertise? Such a court could require ICE to comply with the law, take appropriate corrective action against contemptuous non-compliance, and relieve US District Judges from the responsibility to supervise ICE.
Kakistocracy is neither ethical nor efficient! Vote the kakistocracy out this Fall!
“A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.
In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” “
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Go on over to LexisNexis above for a link to the SPLC report and copy of Judge Bernal’s order.
Thanks and congrats to SPLC and all the pro bono all-stars involved for taking this on. Will there eventually be accountability and liability for what appears to be intentional, life threatening misconduct, or at best criminal negligence, among officials of the Trump regime?
DETAINED MIGRANTS WIN IN FEDERAL COURT: JUDGE GREENLIGHTS NATIONWIDE CLASS ACTION LAWSUIT
April 16, 2020
To make Press Center inquiries, email press@splcenter.org or call us at 334-956-8228.
Tens of thousands of immigrants denied medical care and disability accommodations by the federal government will have their day in court
RIVERSIDE, Calif. – A federal judge ruled today that a nationwide class action lawsuit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) can proceed, greenlighting a challenge to ICE’s system-wide failure to provide standard medical and mental health care and disability accommodations for people in its custody.
U.S. District Court Judge Jesus Bernal issued the ruling in the lawsuit filed by the Southern Poverty Law Center (SPLC), Disability Rights Advocates (DRA), Civil Rights Education and Enforcement Center (CREEC), Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP. The plaintiffs seek zero monetary damages and instead only an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.
Judge Bernal denied the government’s motion to divide the nationwide lawsuit into 15 individual cases in eight district courts. He also denied ICE’s motion to strike the 200-page complaint, which was filed in the U.S District Court for the Central District of California in August 2019.
The ruling comes amid the spread of Covid-19 in detention centers, a dangerous scenario that doctors and public health experts across the country have warned will only be made worse by ICE’s lack of pre-existing medical care and substandard detention center conditions. On March 25, the groups filed an emergency preliminary injunction motion in the case requiring ICE to immediately fix numerous deficiencies in its Covid-19 response, such as inadequate staffing, resources and oversight. The motion further seeks the immediate release of medically vulnerable people if ICE cannot or will not take immediate steps to protect those who are in its custody. Judge Bernal has yet to rule on that injunction.
“Today, the court rejected ICE’s false narrative that our plaintiffs’ stories represent just a few individual problems,” said Lisa Graybill, SPLC deputy legal director. “The court saw through ICE’s deliberate mischaracterization of our case. This is the first step in holding ICE to account for its appalling treatment of the tens of thousands of immigrants needlessly incarcerated and languishing in its prisons around the country.”
According to the lawsuit, ICE has failed to provide detained migrants in over 150 facilities nationwide with safe and humane conditions, as required by agency standards, federal law and the U.S. Constitution. Numerous reports, including accounts by internal government investigators, detail the lack of sufficient medical and mental health care treatment, ultimately resulting in untreated medical needs, prolonged suffering and preventable death. ICE’s punitive use of segregation violates the Fifth Amendment of the U.S. Constitution. The agency’s failure to ensure that detained immigrants with disabilities are provided accommodations and do not face discrimination violates Section 504 of the Rehabilitation Act of 1973.
“Mentally, they are killing us,” said plaintiff Ruben Mencias Soto. “What I am living and what I am seeing is not only my situation. This is unjust as a system. [The government] is falling to the lowest level with ICE.”
Mencias Soto, who has been detained at Adelanto ICE Processing Center in California for over a year, has dislocated and herniated discs in his back. He has had his wheelchair and crutches taken away by detention staff, leaving him without a device to help him walk and causing immense pain.
“Across the country, ICE continually fails to provide basic medical care and necessary disability accommodations to people in immigration detention – putting thousands of people in life-threatening danger every day. From holding people with disabilities in solitary confinement solely because of their medical needs to denying patients in detention doctor-ordered emergency medical care, ICE has demonstrated incompetence and cruelty toward people with disabilities. Disability Rights Advocates is committed to fighting for the civil rights of those in custody until ICE complies with U.S. law,” said Stuart Seaborn, Managing Director of Litigation, Disability Rights Advocates.
“ICE’s failure to ensure that private prison companies like the GEO Group adequately take care of people in their custody has been an open secret for a long time,” said Timothy Fox, co-executive director of the Civil Rights Education and Enforcement Center. “We are pleased that the court will allow us to move forward and hopefully end the impunity with which this agency and its private operators have been acting for too long.”
Plaintiff Jose Baca Hernandez underscored that the goal of the case is to “improve health for me and the rest of the people here [in detention]. This is not only for me. It’s so everyone here can be healthy.” During his time in custody, ICE failed to provide Baca Hernandez–a blind man–with effective communication. He has been forced to rely on his cellmates, attorneys, and guards to read documents, including those related to his medical care and immigration case.
Plaintiff Luis Rodriguez Delgadillo, who has schizophrenia and bipolar disorder, had reached a considerable measure of mental health stability before his detention. In detention, however, his shifting medication regime, lack of therapy and the failure of mental health staff to mitigate stressors have caused his mental health to noticeably decline.
This case is about fighting to ensure “we all can get better treatment,” Rodriguez Delgadillo said. “Some people don’t have the means or are scared to speak, so we fight for everyone else.”
The parties will work with the court to set the schedule for the litigation of the case.
See plaintiffs’ opposition to defendants’ motion to sever and dismiss, transfer actions, and strike portions of the complaint here.
See the complaint here and all other filings in the case here.
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What if we had a Government that “did the right thing” without being sued?
A federal judge ruled Saturday that immigration enforcement officials must allow confidential telephone calls between detainees at the Adelanto ICE Processing Center and their attorneys in light of the coronavirus outbreak.
The 15-page ruling by U.S. District Judge Jesus G. Bernal found that U.S. Immigration and Customs Enforcement must reverse a policy that critics said made it virtually impossible for detainees and their attorneys to confer in private at the facility, about 80 miles east of Los Angeles in San Bernardino County.
Bernal wrote that the agency must provide “free, reasonably private legal calls on unrecorded and unmonitored telephone lines, and must devise a reliable procedure for attorneys as well as detainees to schedule those calls within 24 hours of a request.”
The decision came after the American Civil Liberties Union Foundation of Southern California and others sought a temporary restraining order late last month, noting the risks posed by in-person visitation amid the COVID-19 pandemic.
Attorneys for the detainees, which included the Immigrants’ Rights Clinic at Stanford Law School and the law firm Sidley Austin, hailed the ruling for opening other methods for them to communicate with the outside world during the pandemic.
“This order will protect detained immigrants’ constitutional right to speak with their lawyers — enabling them to fight deportation and regain their freedom,” Eva Bitrán, staff attorney with the ACLU, said in a statement.
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“Nibbling around the edges” of the real problem we’re not addressing: far too much unnecessary, and now dangerous, so-called “civil” immigration detention.
Trump’s“New American Gulag” is a stain on our nation. Phone access is good, but doesn’t address the reality that most of the individuals in the Gulag shouldn’t be there at all.
And, one might well ask why this is an issue at all. Why are officials acting with impunity to deny basic constitutional rights? Why are lawyers required to sue for basics that should be provided in any detention system?
I actually remember a time in the past where every finding by a Federal Court that an Immigration Judge had violated an individual’s legal rights automatically generated a review by the DOJ’s Office of Professional Responsibility and sometimes disciplinary action. Why are Trump law enforcement officials immune from ethical and professional responsibilities and never held accountable (except, apparently, where they follow the law rather than Trump’s whims and desires)?
