Speedy relief needed to address growing threat of the coronavirus in ICE custody
NEW YORK – The New York Civil Liberties Union and Equal Justice Under Law today sought a preliminary injunction in Onosamba-Ohindo v. Barr, a federal class-action lawsuit against Attorney General William Barr and other federal officials, for hundreds of people unlawfully jailed in the Buffalo Federal Detention Facility in Batavia, New York, and the Richwood Correctional Center in Richwood, Louisiana. Given the urgent threat to detained persons posed by the coronavirus, the motion asks the court for an emergency order providing individualized hearings that could lead to release.
In a separate federal case, a doctor employed by the Department of Homeland Security yesterday disclosed that that there are now four confirmed coronavirus cases in the Buffalo Federal Detention Facility.
“People in immigration detention are being exposed to dangerous and unnecessary risks with the spread of the coronavirus,” said Megan Sallomi, staff attorney at the NYCLU. “ICE should use its full discretion to release people as they have promised, but many of these people should never have been detained in the first place. They have a right to a fair hearing, but as of yet the immigration courts have failed to deliver.”
The lawsuit challenges the Buffalo and Batavia Immigration Courts’ practice of ordering detention of thousands of people without adequate procedures to determine whether detention is actually necessary. In particular, detained persons must prove detention is not justified. Even if they succeed, immigration judges set bond in unaffordable amounts and refuse to consider alternatives to detention that would be equally effective at a fraction of the cost. The lawsuit also challenges the practice of two immigration judges who effectively rubber-stamp detention orders for all who appear before them – denying release 95% of the time. These arbitrary decisions flout due process and lead to prolonged, unjustified, and ruinous detention for hundreds.
The motion requests speedy relief to address the growing threat of the coronavirus in ICE facilities, and the urgent need to release those unnecessarily detained. The plaintiffs seek a hearing before an immigration judge for all putative class members at which the government must prove that detention is justified by clear and convincing evidence, the immigration judge must evaluate whether alternatives to detention without bond would be acceptable, and the judge must consider the person’s ability to pay if setting bond.
“The conditions in Richwood made me fear for my life,” said Mr. Antonio Lopez Agustin, one of the lead plaintiffs. “The jail doesn’t appear to be taking precautions. There are still 60 or more people living together in one dorm. I did not have a mask and there was not always soap to wash my hands. I don’t want others to be ignored or face the risk of dying in isolation.”
Mr. Lopez Agustin was arrested during a worksite raid in August 2019 and, though he had never before been incarcerated, spent eight months in immigration detention. Though he was detained in Richwood, Louisiana, his case was heard by a judge in Buffalo, New York by video. As the virus began to spread he joined in a hunger strike at the Richwood facility. ICE released him on April 7, 2020 because of underlying health conditions that left him uniquely vulnerable to the coronavirus.
“In filing this motion, we hope to draw the federal court’s immediate attention to the countless immigrants being wrongfully detained with unfair bond procedures and unaffordable bond amounts,” said Phil Telfeyan, executive director of Equal Justice Under Law. “This issue is especially critical during the current health crisis, and our hope is that the court will agree to release people who never should have been jailed in the first place.”
Dr. Jaimie Meyers, a professor of medicine at Yale School of Medicine who specializes on transmission in jails and prisons, filed a supporting declaration determining that the Buffalo Federal Detention Facility is “dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak.” In a different matter, the judge assigned to this case recently held that the government was detaining those at high risk for illness from COVID-19 in violation of due process in the Buffalo Federal Detention Facility and ordered the government to take additional protective measures.
The lawsuit was initially filed March 11 in the United Stated District Court for the Western District of New York.