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May 18, 2020

NEW YORK – Today the New York Civil Liberties Union and Prisoners Legal Services of New York filed a federal class-action lawsuit against ICE officials at the Buffalo Federal Detention Facility in Batavia, NY, demanding that they treat medically at-risk people in the facility in compliance with Center for Disease Control and Prevention guidelines and a federal district court’s recent decision in Jones v. Wolf.

In Jones, the court determined that people being jailed in the Batavia Facility who were 65+ years old or otherwise considered medically at-risk to COVID-19-related complications by the CDC were entitled to protections designed to decrease their risk of contracting the virus, and that if the facility could not provide such protections the Constitution required that they be released. The decision in Jones led to a host of protective measures being put in place for over a dozen individual petitioners: single-occupancy cells, guaranteed access to things like soap and cleaning supplies, and permission to eat in their cells in order to maintain social distancing.

However, there are many people remaining in the facility who fit the criteria for these same protections whom ICE refuses to identify and refuses to protect. Protective measures for this group have only been implemented on an ad hoc basis when PLSNY attorneys have been able to identify qualified people for ICE.

“Our class consists of likely a hundred or more at-risk people in the Batavia facility who are entitled to basic protections from the threat of COVID-19, but ICE refuses to identify them and refuses to help them,” said Bobby Hodgson, staff attorney at the NYCLU. “ICE officials are the only ones who know how many medically at-risk people are in their custody, and their decision to continue jailing those people without proper protections creates an unacceptable risk of death and serious illness. The rate of transmission in the facility has been rapid and alarming, and ICE’s resistance to complying with the constitutional mandates announced in Jones requires immediate action from the court. No one’s life should be put at risk because they are stuck in ICE detention while they proceed with their immigration case.”

While there are currently no reported deaths from the coronavirus at this time in Batavia, the number of confirmed diagnoses jumped from four on April 9to 49 as of today, out of approximately 300 people in the facility. Batavia contains one of the highest numbers of positive diagnoses in an ICE facility in the nation.

“Prisons and detention centers are smack in the middle of a vicious cycle involving the spread of the disease,” said Karen Murtagh, Executive Director of Prisoners’ Legal Services of New York. “The virus comes from the outside into confined congregate settings where social distancing is impossible. It then spreads like wildfire, infecting both the detained population and staff. Tragically, facility staff unknowingly continue the spread of the virus when they return to their communities, families, and loved ones. We filed the Jones case in an attempt to help reduce the spread of the virus and save lives – including the lives of many people who are being detained only because they are awaiting completion of their immigration proceedings. We are deeply concerned that the failure of ICE to protect the at-risk individuals at the Batavia facility will result in a death sentence for many in and outside of the facility.”

Jones v Wolf was filed in the Western District of New York. Judge Lawrence J. Vilardo issued a series of decisions in the case beginning on April 2, and on April 27, the court issued a preliminary injunction requiring ICE to maintain all current protections for at-risk petitioners: assigning people to single-occupancy rooms, allowing them to eat inside their cells, requiring staff to wear protective gear when interacting with them, and ensuring no-cost access to cleaning supplies.

“ICE should use its full discretion to release people from Batavia and other detention facilities across the state,” said Donna Lieberman, Executive Director of the NYCLU. “Safeguards and protective measures will help save lives, but the threat to people’s lives and safety from the coronavirus is immense. Without huge steps to reduce crowding it will continue to be an immense challenge to quarantine and distance people safely.”

The NYCLU and PLSNY sent a letter to officials on April 22 asking ICE to immediately apply Jones protections to all similarly situated at-risk people in Batavia, with no response. Prior to that, the NYCLU wrote two letters to ICE and detention facility leadership in Buffalo urging them to release people at high risk of contracting the coronavirus and to develop and implement prevention and management plans for the illness in their facilities.

Attorneys on the case include Victoria Roeck, Bobby Hodgson, Megan Sallomi, and Christopher Dunn from the New York Civil Liberties Union; and Joseph Moravec, John Peng, Nicholas Phillips, and James Milstein from Prisoners Legal Services of New York.