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Law360 (March 30, 2020, 3:12 PM EDT ) A federal judge rejected the notion of freeing nearly 150 U.S. Immigration and Customs Enforcement detainees being held in a Massachusetts jail that's been accused of not doing enough to stop the spread of coronavirus, telling attorneys in a hearing Monday that the pandemic is not cause to "empty jails."
U.S. District Judge William G. Young said he might consider bail hearings for some of the 148 immigrant detainees at the Bristol County House of Correction, but would need additional details to make an informed decision.
In particular, Judge Young said he wants to know which detainees might be more susceptible to COVID-19 due to their age or preexisting conditions. He also requested affidavits from doctors inside the jail detailing what they are doing to protect the inmate population, as well as photos of the facility.
While some immigrants may be entitled to release, Judge Young suggested that he would be reluctant to let certain detainees out of ICE custody.
"I will tell you that I have grave doubts about admitting to bail those with violent past criminal convictions. I have grave doubts about admitting to bail someone just released from prison to an ICE detainer. And I have grave doubts about admitting to bail someone who is under a presently executable final order of removal," Judge Young said. "If [ICE] can remove the person, it would seem counterproductive to discharge them into the Massachusetts community."
Judge Young agreed with the petitioners that simply waiting until coronavirus spreads in the jail before taking action would not be appropriate. Still, he said the pandemic "is not a basis for emptying detention facilities or, indeed, emptying prisons."
Even if a detainee were granted bail, the judge said he would have numerous questions about where that person would go, whether the individual would self-quarantine and what other conditions might be imposed.
"It's not that we have to wait for someone to test positive, I don't propose that," Judge Young said. "But I will tell you I don't think that's a ground simply for giving class-wide release to 148 people and then saying to ICE, 'Find a place to put them.'"
While he stopped short of issuing a formal order, Judge Young also recommended that ICE stop transferring detainees to the southern Massachusetts jail. He ordered the parties to reconvene for another hearing Thursday afternoon.
The suit, a proposed class action, was filed Friday by Lawyers for Civil Rights on behalf of a pair of detainees being housed at Bristol who claim the jail's shoddy conditions have "literally trapped" them and made them fear for their lives.
The complaint names both ICE officials and Bristol County Sheriff Thomas Hodgson, an outspoken supporter of President Donald Trump whose representative blasted the claims as riddled with lies.
Other judges, including Judge Young's colleague, U.S. District Judge Mark L. Wolf, have ordered immigrants being held on civil detainers to be released with certain conditions. Judge Young said during Monday's hearing, held via video conference, that he had doubts about the case proceeding as a class action, given the differences between the 148 potential class members.
"We agree with Your Honor in the sense that the putative class has some different circumstances," said Oren Sellstrom of Lawyers for Civil Rights. "However, there are common questions that bind all of them together and we believe a common violation of the Fifth Amendment, namely they are being held in conditions that are unreasonably unsafe in light of the current pandemic."
Assistant U.S. Attorney Thomas Kanwit said the jail has not reported any cases of the novel coronavirus among the detainees, showing that the facility "is doing something right" when it comes to protecting their health. The argument drew an objection from Sellstrom.
"I think that misses both the point of our complaint and what public health experts have told us many times over," Sellstrom said. "If you wait until the point at which the virus takes hold, it is too late. That is why the world has taken these extraordinary precautions."
Sellstrom said that he was confident an appropriate plan could be put in place for any detainees who are released. But Kanwit argued that the petitioners were overlooking other potential solutions, such as moving detainees to another facility.
"Really all they are interested in is release from detention," Kanwit said. "That's the whole ball of wax for them."
According to the complaint, the detainees are crammed in close proximity to one another without enough soap, toilet paper and other necessities needed to stave off spread of the virus. ICE has declined to comment other than to say it has faith in the sheriff's office.
The petitioners are represented by Ivan Espinoza-Madrigal, Oren N. Nimni and Oren M. Sellstrom of Lawyers for Civil Rights and by Reena Parikh and Michael J. Wishnie of Yale Law School.
ICE and the sheriff's office are represented by Thomas E. Kanwit and Michael P. Sady of the U.S. attorney's office.
The case is Savino et al v. Hodgson et al, case number 1:20-cv-10617, in U.S. District Court for the District of Massachusetts.
--Editing by Abbie Sarfo.
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