The Biden administration and the American Civil Liberties Union said Monday that they have reached an “impasse” over the expulsions of migrant families at the southwest border and are returning to federal court to ask a judge to rule on the issue.

The American Civil Liberties Union (ACLU) is reviving a lawsuit challenging the government’s use of a public health authority to quickly expel people crossing the Southern border, preventing them from seeking asylum.

John Otieno, an asylum seeker from East Africa, was among those force fed after initiating a hunger strike during the pandemic. Otieno used a pseudonym to protect his identity.

On a cold, rainy night last November, Bastian Rodriguez spent the first hours of his 18th birthday inside an Immigration and Customs Enforcement van. Rodriguez was aging out of the Cowlitz County Youth Services Center, a juvenile jail in Longview, Wash., and was on his way to the Northwest ICE Processing Center, a privately run immigration detention facility for adults in Tacoma. He had already spent more than two years in ICE custody.

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Originally published by LA Times

The American Civil Liberties Union is asking a federal judge to order the release of immigrant detainees from two California border facilities amid the coronavirus crisis.

In a class-action lawsuit filed Tuesday, the ACLU of San Diego and Imperial Counties argued that Immigration and Customs Enforcement isn’t doing enough to protect those in its custody. The lawsuit calls for a drastic reduction of detainees to allow those who remain to have the space to practice social distancing.

Court intervention is necessary immediately, said Monika Langarica, an ACLU attorney. There is no longer any time to waste.

ICE declined to comment, citing agency policy about ongoing litigation.

The lawsuit comes a day after a federal judge in Los Angeles ordered ICE to consider releasing all detainees who have a higher risk of complications from COVID-19. The judge said detainees were likely to succeed in their arguments that ICE has shown medical indifference as the pandemic has spread in facilities.

The San Diego lawsuit is brought on behalf of four named plaintiffs – two men and two women – all asylum seekers.

One of the men is HIV positive, and one of the women has moderate-to-severe asthma, according to the complaint. Because of their medical conditions, these plaintiffs are particularly concerned that they are at high risk for serious illness or death if they become infected with the novel coronavirus.

Otay Mesa Detention Center, where the two men are held, has already become a hot spot for COVID-19 cases.

On Tuesday evening, ICE’s website indicated that 29 detainees at Otay Mesa had tested positive for the virus. An additional 18 people at the facility in federal criminal custody under U.S. Marshals Service had tested positive as of Monday morning, according to facility documents.

The documents noted that the facility expects to see more positive cases as testing expands to a wider group of detainees.

Twenty-one staff members – 13 CoreCivic employees and eight medical staff – had tested positive for the virus as of Monday afternoon, according to the documents. CoreCivic is the private prison company that runs the detention facility.

So far, ICE has said there are no virus cases at Imperial Regional Detention Facility, which is run by the private prison company Management and Training Corp.

The lawsuit does not specify how many detainees ICE should release from Otay Mesa Detention Center and Imperial Regional Detention Facility. It calls for immediate, emergency release of detainees who have medical conditions that would make them high risk, as well as an orderly release of enough detainees to reduce the population to a point that those left inside can practice proper social distancing and hygiene recommendations.

ICE had said that it would consider releasing detainees who are at high risk of severe complications from COVID-19.

When asked Tuesday how many people had been released from its custody through its review, ICE referred to statistics from March 30 that about 160 people out of 600 identified as high risk were released.

In April, ICE announced that it would do another review of cases to try to release more. It is not clear how many have been released since then.

Four detainees from California border facilities who have medical conditions that put them at greater risk – two held at Otay Mesa Detention Center and two at Imperial Regional Detention Facility – were released after the ACLU filed a separate lawsuit on their behalf. After they were let out, the organization moved to dismiss that case.

Acting ICE Director Matthew Albence told a congressional committee on Friday that our review of our existing population has been completed and that ICE does not plan to release any other detainees to slow the spread of coronavirus in detention facilities, according to the committee’s website. ICE has released fewer than 700 vulnerable individuals, the website says.

The ACLU’s new complaint details numerous instances of detainees’ struggles to protect themselves from the virus.

Whether soap in a housing unit gets refilled depends on which guard is on duty that day, the complaint says.

Detainees can buy bar soap at the commissary, but for some, that means cleaning parts of the facility that could expose them to the virus, Langarica said.

These are the kinds of negotiations that people in detention have to make, Langarica said. Do I work cleaning this area and expose myself to whatever is in it to have money for soap, or do I not work and then potentially not have money for soap the next time the dispenser runs out?

Some detainees also reported having to sleep in bunk areas with eight other detainees, meaning that they cannot isolate themselves within their housing units.

It’s not hyperbole to say that social distancing is impossible in these housing units, Langarica said. They cannot sleep or sit more than 6 feet away from other people.

Other detainees reported not being taken seriously when they tried to report their COVID-19-like symptoms to facility staff. One at Otay Mesa said he was returned to the cell he shared with seven other people after seeing a nurse for his symptoms. He stayed with them for several more days as his fever worsened before he was transferred to the medical unit, according to the complaint.

Another detainee at Imperial had a fever for a week before she was taken out of her housing unit, the complaint says.

Across the country, attorneys have had mixed results after filing lawsuits calling for clients’ release from immigration custody due to the virus. Notably, judges at the Southern District of California have denied several individual requests for release.

On Monday, in one of the most sweeping orders yet calling for the release of immigrant detainees, a federal judge ordered immigration authorities to begin considering for release all detained immigrants at higher risk of complications from COVID-19, admonishing ICE in stark terms for a slow, insufficient response to the pandemic that he said has put lives in jeopardy.

U.S. District Judge Jesus Bernal granted an emergency preliminary injunction at the request of immigrants with serious medical conditions or disabilities who said ICE had failed to take meaningful steps to protect them from the virus over the last month.

Bernal said the detainees were likely to succeed in their arguments that ICE has put them at substantial risk of harm because of a monthlong delay in developing a systemwide plan to combat the pandemic in the close quarters of detention buildings.

His order requires the agency to address shortcomings in current plans and create minimum acceptable conditions that all facilities must follow to ensure the safety of medically vulnerable immigrants who remain in custody.

In court filings, ICE said it had taken measures to protect detainees and defended them as sufficient and in line with guidance from federal health authorities.

Bernal’s ruling requires all public and privately operated facilities housing immigrants across the country to consider for release all inmates older than 55, who are pregnant or who have serious underlying health conditions.

Morrissey writes for the San Diego Union-Tribune.

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Originally published by LA Times

The American Civil Liberties Union has asked a San Diego federal judge to dismiss a lawsuit related to the COVID-19 pandemic after its four plaintiffs were released from immigration custody.

The ACLU had sued Immigration and Customs Enforcement to call for the four detainees – whose medical conditions put them at higher risk of serious illness or death from the coronavirus – to be set free due to the pandemic. Two of the detainees were held at Otay Mesa Detention Center, which has become a hot spot for the virus; the other two were held at Imperial Regional Detention Facility.

Our plaintiffs’ release from custody is a victory for them and their families, said Monika Langarica, attorney with the ACLU Foundation of San Diego and Imperial Counties. We urge ICE to continue reducing its population of detained people in accordance with public health experts’ recommendations during this pandemic. ICE detention should never be a death sentence.

The man held at Otay Mesa has leukemia, and the woman held at the south San Diego facility has lung disease. Both were released from custody Friday night.

The two people released from Imperial Regional Detention Facility, a husband-and-wife pair, are HIV- positive. The couple were released Thursday.

Twelve ICE detainees had tested positive for the novel coronavirus as of Friday. Four other inmates at Otay Mesa Detention Center who are in criminal custody have also been confirmed to have COVID-19.

So far, ICE has said there are no positive cases at Imperial Regional Detention Facility.

ICE has said that it is following Centers for Disease Control and Prevention guidelines for detention centers and that it would review cases to possibly release detainees who are high risk.

As confirmed COVID-19 cases have increased among ICE detainees nationwide, advocates, attorneys and elected officials have all called for more people to be released from custody, particularly those who are at high risk of more serious symptoms.

The horrifying conditions at Otay Mesa Detention Center are unacceptable. Every day that officials continue to lock up low-risk and vulnerable people is another day that people in U.S. custody along with countless facility and court personnel, legal representatives, witnesses and family members are put at risk of a preventable death from a deadly virus, said Sen. Kamala Harris (D-Calif.).

We are in a moment of crisis that requires leaders to respond swiftly and humanely in the interest of public health. The Department of Homeland Security has failed to take sufficient commonsense actions that would save lives. That needs to change – now.

California Atty. Gen. Xavier Becerra on Monday also joined in the call for the inmates’ release.

Failure to act will not only harm immigrants in civil detention, it could also impact community hospitals that will need to mobilize a medical response if nothing is done, he said. It’s going to take all of us working together to get through this challenge and we’re asking the federal government to do what’s right.

Sen. Cory Booker (D-N.J.) and Rep. Pramila Jayapal (D-Wash.) introduced a bill Monday that would release many detainees from immigration custody in light of the pandemic.

Morrissey writes for the San Diego Union-Tribune.


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Originally published by The New Yorker

Earlier this month, the U.S. Supreme Court ruled to allow a new executive-branch regulation, which effectively ends asylum at the southern border, to remain in place for the next several months, while its legality is challenged in the federal courts. The ruling will now make it impossible for tens of thousands of migrants to apply for asylum when they reach the U.S.; it will also block thousands of other asylum seekers currently in Mexico, who have already begun the application process during the past two months under a different Administration policy, called the Migrant Protection Protocols, or the Remain in Mexico program. It was a puzzling outcome. The Court not only broke with nearly four decades of legal precedent but also seemed to contradict its own position from less than a year ago. In December, 2018, the Supreme Court faced a nearly identical question, following an earlier order by President Trump to ban asylum at the border. On that occasion, the Supreme Court ruled that the ban could not remain in effect as it moved through the lower courts.

This weekend, I spoke with Lee Gelernt, a lawyer with the A.C.L.U., who is leading the litigation against both of Trump’s asylum bans. The Trump Administration has insisted that there is a right and a wrong way for immigrants to come to the U.S; the converse of that argument is that there is also a right and a wrong way for the U.S. government to make immigration policy. According to Gelernt, the recent asylum bans have failed to meet the most basic standards laid out by Congress in the Refugee Act of 1980 and the Administrative Procedure Act, which invalidates policies that are arbitrary and capricious. Now, Gelernt said, there are so many different policies in place, at so many different stages of litigation, that the over-all effect is approaching a kind of chaos. It’s becoming difficult to figure out which policies are in place, which are enjoined, which are partially enjoined, and what it all means, he said. Our conversation has been edited and condensed.

Trump has tried to ban asylum at the southern border before, and the Supreme Court got in his way. How does that previous episode relate to what the Supreme Court is doing now?

There have been two direct asylum bans by the Trump Administration. The first one was last year, and that ban would have barred asylum for anybody who crossed [the border] between ports of entry. We challenged it within a few hours of the President issuing the ban, and got a nationwide injunction to block the ban from a judge in San Francisco, saying the ban could not go into effect. The government appealed that ruling but at the same time asked the Ninth Circuit Court of Appeals to issue what’s called a stay of the injunction, to allow the ban to go into effect immediately while the case worked its way through the appellate courts. The Ninth Circuit refused. And so the government went to the Supreme Court to ask it for an emergency stay of the injunction to allow the ban to go into effect while the case went through appeals. The Supreme Court, in a 5-4 decision, said that it would not allow the ban to go into effect immediately and refused the Administration’s request for an emergency stay.

What about the asylum ban announced this summer?

Next we have asylum ban 2.0, which is called the transit ban, and was issued this past July. This asylum ban says that you must apply for asylum in a country you transited through: if you’ve travelled through a third country on your way to the United States, you must apply for asylum in that country. (If you don’t, the government would consider you ineligible to apply for asylum in the United States.) That would effectively end asylum at the southern border-for everyone but Mexicans, who obviously don’t need to transit through a third country to reach the U.S.

And the A.C.L.U. challenged this ban just as it did the first one.

We again went in, within thirty-six hours, to the same district court in San Francisco, because the case was related to the first asylum ban. Again, the judge blocked it nationwide and said that the second asylum ban could not go into effect nationwide. Once again, the government sought an emergency stay from the Ninth Circuit Court of Appeals, asking the court to let the ban go into effect immediately while the government appealed the case on the merits. This time, the Ninth Circuit did something different. It narrowed the injunction from a nationwide injunction to a Ninth-Circuit-specific injunction, meaning it would be blocked from going into effect in California and Arizona, the states that fall under the jurisdiction of the court. At the same time, the Solicitor General went to the Supreme Court and said that the government should be allowed to put the second asylum ban into effect around the country nationwide, and that the Ninth Circuit should not have blocked the ban anywhere in the country.

What happened last week?

On September 11th, this year, the Supreme Court ruled-and issued a stay, in contrast to what it had done with the first asylum ban. This time the Court said that the second asylum ban could go into effect immediately nationwide. We don’t know which five Justices ruled in favor of the stay or how many Justices dissented. The opinion was unsigned. We know that Justice Sotomayor and Justice Ginsburg would not have issued the stay. They signed a dissent.

Is there any way in which the legal problems associated with the second asylum ban were not as clear-cut as those associated with the first? Anything that could explain why the Supreme Court would behave differently from one case to the next?

The first asylum ban said that you may not get asylum if you apply between points of entry. We pointed out that the federal statute says very precisely that you may apply for asylum whether or not you enter between a point of entry or at a port of entry. With the first asylum ban, there was a direct conflict with the statute Congress had passed, a literal contradiction. What the government said in the second asylum ban was that even if there was a direct conflict between the first asylum ban and what Congress had explicitly written in the statute, there’s not the same specific conflict in the second asylum ban. Congress never said in so many words that the executive branch could not have a transit bar.

But Congress had specifically thought about, and addressed, the question of the availability of asylum for those who have transitted through a third country. And Congress decided that merely transitting through a third country was not a basis for automatically denying asylum, except in two very narrow circumstances, both of which took into account whether you would be safe in the third country, and whether the third country was willing and able to provide you with a full and fair asylum process. Whether that’s what the majority of the Justices thought was the difference (between the first and second asylum bans), we don’t know, because there’s no opinion.

How should people understand the premise and stakes of the second asylum ban?

The premise of the transit bar, according to the Administration, was that an asylum seeker must not really be in danger if he or she doesn’t apply for asylum in the first country that she enters. But that assumes that when you’re fleeing, for example, from El Salvador, and you get to Guatemala, you believe you’ve reached a safe haven, and that Guatemala has a fully functioning asylum system. The facts do not bear this out. The reality, as all experts understand, is that the reason people don’t sit in Guatemala or Mexico and seek asylum there is that they know they’ll continue to be in danger, that the gangs who have been attacking them-or the perpetrator of the domestic violence they’re fleeing, or other types of danger-can easily locate them in Guatemala or Mexico; they will not be safe. And they also know that those countries do not provide a full, fair asylum process.

How has the idea that there’s an emergency at the border played into the arguments made by the government in court?

The government’s briefs to the Supreme Court have emphasized that extensively, both for the first asylum ban and the second ban. What we said for the first asylum ban and the second was that if Congress thinks there’s a crisis, then it’s for Congress to fix the asylum laws. The second thing we pointed out was that the numbers of those crossing are not historically high. And the third thing we pointed out is that you cannot react to the numbers, which ebb and flow, by eliminating a fair process for asylum seekers. You have to provide more resources and make the system more efficient, but you cannot simply end the process for asylum seekers. The numbers [of people being apprehended at the border] have also gone down since the first asylum ban.

The Supreme Court has ruled on a matter of procedure with the second asylum ban, but the stakes are much higher than that. How would you describe them?

Congress has been in charge of asylum law since the asylum statute, in 1980, sought to bring the country into conformity with international standards. The Administration should not be able to radically change asylum laws to the point of effectively eliminating asylum at the southern border, at the stay stage, without a full hearing. For the first asylum ban, the court decided that it would not allow the Administration to upend forty years of unbroken practice. For the second asylum ban, it decided to allow the Administration to do so. The fact is that as bad as the first asylum ban is, the second ban is that much more extreme. The first asylum ban would have at least allowed people to apply for asylum at a port of entry, as hard as that may be. The second asylum ban, we fear, will effectively end asylum at the southern border.

A legal challenge to another Administration policy, called the Migrant Protection Protocols, which forces asylum seekers to wait in Mexico indefinitely while their claims are adjudicated in U.S. immigration courts, is also moving through the courts, and is due to be argued before the Ninth Circuit in October. How does the Supreme Court’s procedural ruling on the second asylum ban affect the status of M.P.P.?

The second asylum ban will have a significant impact on M.P.P.. Interestingly, the M.P.P. appeal in the Ninth Circuit and the first asylum ban are both being argued on the morning of October 1st, before the same panel in San Francisco. The second asylum ban will have a devastating effect on people in M.P.P., because now they’ve been waiting months for the opportunity to seek asylum. We don’t know, and can only assume and hope, that anybody who was placed in M.P.P. before the second asylum ban was issued will still be allowed to apply for asylum, because they tried to apply for asylum and were placed in Mexico. But for people who were placed in M.P.P. after the second asylum ban, this is going to have a devastating effect, because now they will not be allowed to apply for asylum. They’ll have to wait in Mexico, and the only thing they’ll get when they are brought to the United States is an opportunity to seek withholding of removal or relief under the Convention Against Torture. Withholding, like asylum, protects individuals fleeing persecution. But it is a much harder form of relief to obtain because the standard of proof is very high, and it also doesn’t provide all the benefits of asylum.

What happens now to the people who came to the U.S. seeking asylum and were placed in M.P.P.?

It depends on whether they were out there before July 16th or not. We’re waiting to see exactly what the Administration does. Supposedly, if you were apprehended before July 16th, you will still get to apply for asylum. But for people arrested after that, it may be that they will only be able to apply for withholding of removal. It’s going to be a complete mess.

How does the second asylum ban fit within the broader immigration agenda of the Administration?

At a more general level, we have seen policies from this Administration directly attacking asylum, like the bans, like M.P.P. We also have seen other policies that the Administration claims were not direct attacks on asylum seekers, but we all know that they were intended to deter asylum seekers. Most notably there was the practice of separating parents from their children at the border, which the public may be surprised to understand is still ongoing. There have been approximately a thousand separations just since the court halted the policy last summer. There’s another family separation hearing this Friday to address the legality of these ongoing separations. And the other thing that’s coming out is that we’re slowly getting the names for the separations that were carried out before the formal zero-tolerance policy was announced. There may be as many as two thousand five hundred of those. People thought that there were two thousand eight hundred to three thousand separations total during the entire Trump Administration. We’re now looking at something more like six to seven thousand separations.

What happens next with the second asylum ban?

It goes to the Ninth Circuit now, and the Ninth Circuit has said that it wants the appeal expedited. They’ve set the argument for December.

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