By Chris Villani

Law360 (June 18, 2020, 1:48 PM EDT ) A federal judge sharply criticized the government Thursday for an "off the wall" argument in opposition to bailing U.S. Immigration and Customs Enforcement detainees from a Massachusetts jail to reduce the facility's population during the COVID-19 crisis.

Dismissing as "fanciful" the argument that ICE and the Bristol County House of Corrections worked with, rather than against, a class of detainees to bail dozens of individuals, U.S. District Judge William G. Young sought to "set the record straight" in a 12-page memorandum and order. The document clarified questions he had asked the government and explained his previous finding that ICE was deliberately indifferent to the health risks for detainees during the pandemic.

"There was no 'tacit approval' or 'collective process' of releases," Judge Young wrote, acknowledging that the government did help in singling out detainees who were especially unfit to be released on bail.

"Yet that does not imply that the government agreed that others should be released, let alone worked toward that goal. It did not," the judge wrote. "At the end of the day the government's position was uncompromising. It was also off the wall."

Judge Young suggested looking at both the big and small picture to explain his thoughts on the government's pushback against trimming the detainee population to allow for more social distancing, which health officials have termed a "cornerstone" of COVID-19 prevention.

"This was the major problem in BCHOC at the start of this litigation, since the detainees were indisputably sleeping and eating very close to one another," Judge Young wrote. "The government never argued that the full cohort of 148 BCHOC detainees could achieve effective social distancing. Instead, it chose to pretend that social distancing was not critical, repeatedly asserting that the facility was safe because the virus could somehow be kept outside — even after numerous staff and one detainee tested positive."

The COVID-19 prevention strategy amounted to a "daredevil mindset," the judge found, and lacked a "Plan B."

"To borrow a driving analogy from the government, it is like a NASCAR driver who spurns a seatbelt and helmet because she plans not to crash," Judge Young wrote.

Highlighting what he called the "small picture" examples of the government not being willing to play ball, Judge Young noted that the government opposed bail for Andrea James, a 54-year-old grandmother with diabetes and hypertension who arrived in ICE custody after serving 20 years in prison for cocaine distribution in 1998 because "ICE believes her to be a danger to the community."

Similarly dangerous and a "threat to public safety," according to ICE, is Georgios Nikiforides, a 49-year-old electrician with chronic obstructive pulmonary disease, a recent history of hospitalization for pneumonia, and hypertension who has been in the U.S. since he was 2 years old and who has been awarded a full pardon for a pair of assault convictions, Judge Young wrote.

"Other examples are the 54-year-old grandfather of two U.S. citizens whose sole non-immigration offense is for shoplifting and the 57-year-old Walmart employee with hypertension whose only criminal history is immigration fraud," Judge Young added.

Citing those examples, Judge Young described the government's stance as a "wholesale blockade on bail." At the outset of his memorandum, the judge said he still wants to know whether the government is complying with procedures set by the Centers for Disease Control and Prevention as well as ICE and sought to spell out the exact information he is seeking.

Inmates in the southeastern Massachusetts jail sued in late March, citing the facility's allegedly failing response to the virus and unsanitary conditions. Judge Young certified the detainees as a class and released dozens on bail.

In May, Judge Young ordered ICE to pay for the facility to test all of the federal immigration detainees in its care, as well as all jail employees, and ordered the facility to stop taking in new detainees. That ruling stemmed from his finding of "deliberate indifference" on the part of the government.

In trying to counter that finding, the government stressed that the jail has a "virtually perfect record" of no confirmed positive COVID-19 cases among detainees and that "[n]o one knows which steps, or what combination of measures, is responsible for the remarkable limit of COVID-19 among the ICE detainees."

"That is true," Judge Young wrote Thursday. "Yet, just as 'the increased rate of infection' does not itself prove deliberate indifference, the absence of known infections does not disprove deliberate indifference."

He capped the order ominously, writing "we are not yet out of the woods."

"Plaintiffs are gratified by Judge Young's ruling today. At every turn, and despite repeated opportunities to do otherwise, the government has consistently failed to protect immigrants held in civil detention from the grave risks of COVID-19," said Oren Sellstrom, litigation director of Lawyers for Civil Rights, representing the detainees. "The well-reasoned decision demonstrates again the correctness of the court's finding that plaintiffs are likely to succeed on their claim of deliberate indifference."

A representative for ICE declined to comment. The Bristol County Sheriff's Office did not immediately respond to a request for comment.

The detainees are represented by Ivan Espinoza-Madrigal, Oren N. Nimni, Oren M. Sellstrom and Lauren Sampson of Lawyers for Civil Rights, Reena Parikh, Muneer Ahmad and Michael J. Wishnie of Yale Law School and Annaleigh E. Curtis, Elizabeth E. Driscoll, Felicia H. Ellsworth, Gary B. Howell-Walton, Lisa J. Pirozzolo, Michael J. Brown, Mikayla C. Foster, Nicole M.F. Dooley, Rama S. Attreya and Vinita Ferrera of WilmerHale.

The government is represented by Thomas E. Kanwit and Michael P. Sady of the U.S. Attorney's Office for the District of Massachusetts.

The case is Savino et al. v. Souza et al., case number 1:20-cv-10617, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Brian Dowling. Editing by Orlando Lorenzo.

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