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Law360 (June 17, 2020, 4:19 PM EDT ) Immigrant detainees can challenge their living conditions at a county prison, a New Hampshire federal judge ruled, forcing the government to face those detainees' suit claiming they're not being kept safe from the coronavirus outbreak in the prison.
U.S. District Judge Landya McCafferty said in a Tuesday order that a habeas corpus petition that allows prisoners or detainees to fight the lawfulness of their confinement is the appropriate mechanism for immigrant detainees to challenge their living conditions at the Strafford County House of Corrections in Dover, New Hampshire.
By requesting to be immediately released from the correctional facility, the detainees are essentially asking to have their level of custody changed the same way a prisoner would file a habeas corpus petition to be released to home confinement with electronic supervision rather than being incarcerated, according to the opinion.
Although circuit courts are split on whether habeas corpus can be used to challenge prison living conditions, the First Circuit ruled in the 2010 case Gonzalez-Fuentes v. Molina
that a prisoner could use habeas corpus to request less restrictive confinement, Judge McCafferty said."Therefore, the court concludes that petitioners' claim may properly be brought by a petition for a writ of habeas corpus," she said.
Judge McCafferty, who already released 10 detainees from the Strafford correctional facility on bail, also rejected the government's argument that the detainees didn't state sufficient constitutional claims and hadn't suffered harm while confined at the correctional facility, warranting the dismissal of their suit.
The judge said that the detainees don't need to have suffered injury to seek relief from the potential harm that remaining in the prison poses to their health and safety in light of the novel virus outbreak.
The detainees sufficiently pled in their April petition that the correctional facility has failed to implement measures such as social distancing to protect them from the spread of COVID-19, Judge McCafferty said.
Lawsuits have been filed across the U.S. seeking the release of immigrant detainees during the coronavirus outbreak, achieving mixed results. Judges in D.C. and Louisiana both ruled in April that they don't have the authority to release detainees who are at a higher risk of contracting the virus in ICE's custody.
However, a California federal judge told U.S. Immigration and Customs Enforcement to promptly evaluate and potentially release thousands of vulnerable detainees, blasting the agency for not acting to protect them. And a Massachusetts federal judge ordered detainees to be released, citing the urgent need to reduce the state's jail population during the pandemic.
Democratic lawmakers in early April proposed a bill to release the majority of immigrants in civil detention and limit immigration enforcement in light of the virus outbreak. But the bill has failed to make progress in the House or Senate since the time it was introduced.
The detainees' attorney Nathan Warecki told Law360 in a Wednesday statement that they are pleased with the judge's decision "in light of the extraordinary circumstances presented by the COVID-19 pandemic."
"ICE's inability or unwillingness to protect civil immigration detainees from the effects of the coronavirus, such as the use of widespread testing and social distancing, offers no shelter from constitutional scrutiny," he said. "Petitioners will continue to advocate for judicial release of civil immigration detainees on the basis of their individual circumstances in an effort to mitigate health and safety risks all incarcerated persons at Strafford County House of Corrections face."
Counsel for the government did not respond to a request for comment on Wednesday.
The detainees are represented by Colin Missett, David A. Vicinanzo, Marx Calderon, Michael Strauss, W. Daniel Deane, W. Scott O'Connell and Nathan P. Warecki of Nixon Peabody LLP, Behzad Mirhashem of the Federal Public Defender's Office, Cathy J. Green, Emily Assunta White, Ronald L. Abramson and Timothy C. Ayer of Shaheen & Gordon PA, Gilles R. Bissonnette, Henry Klementowicz and SangYeob Kim of American Civil Liberties Union of New Hampshire, Henry Clay Quillen of Whatley Kallas LLP, and John P. Newman of Newman Law Office PLLC.
The government is represented by Frances S. Cohen of the U.S. Department of Justice's Civil Division, and Robert J. Rabuck, Terry L. Ollila, Anna Dronzek, Cam T. Le, Georgiana L. Konesky, John S. Davis and Kasey A. Weiland of the U.S. Attorney's Office for the District of New Hampshire.
The case is Gomes et al. v. U.S. Department of Homeland Security, case number 1:20-cv-00453, in the U.S. District Court for the District of New Hampshire.
--Editing by Adam LoBelia.
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