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Law360 (April 2, 2020, 8:00 PM EDT) -- A putative class of federal immigration detainees suing the government over prison-like conditions and attorney access complained to a California federal judge at a hearing Thursday that COVID-19 protocols are further restricting access to attorneys — policies the judge called unclear.
The proposed class action over conditions at the Adelanto detention facility was filed in 2018, long before the coronavirus outbreak in the United States, and Thursday's hearing was conducted over the phone as part of the Central District of California's virus protocols. The facility is privately operated by GEO Group Inc. to house detainees of U.S. Immigration and Customs Enforcement.
The temporary restraining order request and other filings related to it were sealed, but U.S. District Judge Jesus G. Bernal's questions covered a wide range of topics and offered a window into how COVID-19 safety protocols are impacting the San Bernardino County facility that was already accused of improperly limiting access to attorneys before the public health crisis.
Among the factual disputes the judge noted was how attorney visitations are being conducted. He also said there appeared to be a "lack of clarity" as to what the visitation guidelines are and how they are being enforced.
"To be fair, we are told by ICE that it is an evolving situation and they have sharpened their policies, and initially there could have been some confusion over what was and was not allowed by the employees for the terms of visiting," Assistant U.S. Attorney Joseph Darrow said.
The lawsuit was filed by a group of former and current detainees and took aim at the Adelanto facility's alleged policies, such as keeping immigrants from making free legal calls or from having confidential meetings with attorneys. Judge Bernal in October denied the government's motion to dismiss the suit and said it could proceed.
The facility is allowing noncontact visitations through plexiglass and since March 23 has allowed contact visitations, Darrow told the judge. The attorneys must wear full personal protective equipment, including gloves, eyewear and facial masks, and the clients are required to wear them for contact visits, although the attorneys must provide their own, he added. Attorneys must also submit to a temperature check and questionnaire.
But ACLU of Southern California attorney Eva Bitran disputed that contact visitations are being allowed, and said she and other plaintiffs' attorneys were told they are "expressly not available." When asked by the judge, Darrow said he did not have any available information as to how many contact visitations have occurred since March 23.
The judge did not make any final decisions about the TRO and asked attorneys to provide updated filings by Monday. He said he expressed no opinion on the "propriety" of the visitation requirements, but that "in the abstract without this being an attorney-client issue, the measures seem to make sense from a containment perspective."
The judge also spent a significant amount of time asking questions about how phone calls with lawyers are being handled, including access to calls that are not recorded or monitored.
Bitran said that access to unmonitored calls is limited, including because in many cases only the clients can request them, and the request can take several days to turn around.
According to Judge Bernal's October order denying the motion to dismiss, the initial lawsuit alleges that detention facilities in Southern California barred immigrants who were held there from making free legal calls. The facilities also allegedly restricted the times when detainees could make paid or collect calls while also demanding that a live person answer the phone on the other end, thereby preventing them from leaving voice messages.
The detainees' legal calls were also allegedly monitored and recorded, and attorneys with appointments purportedly had to sometimes wait more than four hours to see their clients, according to a summary of the complaint, which is not publicly available. Mail was not an adequate alternative to phone calls, as it was at times allegedly opened before being delivered to the recipient, and the detainees were allegedly also not provided internet access, Judge Bernal's October order said.
The Orange County Sheriff's Department, which ran two jails to house immigrants, had been named as a defendant in the initial lawsuit, but was voluntarily dismissed in July.
GEO has fallen under fire for its detention centers before. In June, a U.S. Department of Homeland Security internal watchdog revealed that two GEO facilities, including Adelanto, ran afoul of government standards for separating detainees when they violate rules, fight or for their own protection.
The immigrants are represented by Eva Bitran and Michael Bryan Kaufman of the ACLU Foundation of Southern California.
The federal government is represented by Joseph Anton Darrow and Aaron Kollitz of the U.S. Attorney's Office for the Central District of California.
GEO is represented by David Van Pelt of Akerman LLP.
The case is Ernesto et al. v. U.S. Department of Homeland Security et al., case number 5:18-cv-02604, in the U.S. District Court for the Central District of California.
--Additional reporting by Alyssa Aquino. Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
