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Law360 (July 2, 2020, 3:04 PM EDT ) A New Hampshire federal judge has refused to order expedited bail hearings for migrants held in a county jail who are at low risk for complications from coronavirus, finding that the government's measures to curb the jail's virus risk were "objectively reasonable."
U.S. District Judge Landya McCafferty ruled on Wednesday that U.S. Immigration and Customs Enforcement detainees at lower risk of virus-related complications were unlikely to prove that the government had failed to protect them from the disease and declined to order expedited bail hearings for them.
"While the respondents' approach to reducing the risks of COVID-19 has not been flawless, it has been, on balance, objectively reasonable," she said.
Migrant detainees at the Strafford County, New Hampshire, jail sued for their release in April. Some of them scored an early victory in May, when Judge McCafferty ordered immediate release hearings for detainees at high risk of developing complications from coronavirus, finding they were likely to succeed in their habeas claims.
However, that early win left behind the lower-risk detainees. The federal judge explained that it was a "close call" on whether they were entitled to the same relief, especially considering that, at the time, no virus cases had been found in the jail.
On Wednesday, Judge McCafferty weighed the government's coronavirus measures and found them sufficient.
The jail has suspended in-person visitation except for clergy and attorneys, regularly screened staff and incoming detainees for coronavirus, and imposed quarantine measures. Additionally, ICE has stopped transferring detainees from other facilities to the county jail, she said.
She acknowledged that the measures still had gaps. The jail also houses — and continues to bring in — the local community's pretrial detainees and convicted inmates. And there is inconsistent mask-wearing in the jail and nonexistent virus testing for inmates who have no coronavirus symptoms, according to the opinion.
The court additionally noted that between May 14 and July 1, only 20 coronavirus tests were administered to detainees. According to the opinion, the jail holds 305 detainees.
But after weighing the arguments, Judge McCafferty wasn't convinced that the lower-risk detainees could show the government had been recklessly neglecting their health.
The decision hinged on Judge McCafferty's appraisal of jail Superintendent Christopher Brackett's testimony, which she found credible.
"He is willing to admit the flaws and does not exaggerate the successes in his approach. He is devoted to the cause of keeping those in his custody safe; he reads the guidance from the [Centers for Disease Control and Prevention] and makes decisions based on that guidance," she said.
Strafford County Administrator Raymond F. Bower told Law360 on Thursday that the county was pleased with the order and the judge's confidence in the county.
There are no coronavirus cases in the facility, "and we attribute that to the things we have in place," he said.
"We do take the judge's recommendations to heart and we're making plans right now to do that," he said, noting the gaps Judge McCafferty found in the jail's virus safeguards.
Bower said it was too early to specify what new coronavirus measures the county would take in light of the judge's criticisms.
Representatives for the detainees and ICE didn't immediately respond to requests for comment Thursday.
Judge McCafferty's order comes amid the rapidly changing legal landscape over immigration detention.
Last week, a Florida federal judge suggested ordering an independent review of three ICE detention centers' measures for preventing virus outbreaks. And in California, a federal court ordered the release of migrant children who have been detained for longer than 20 days in Texas and Pennsylvania facilities.
The detainees are represented by Colin Missett, David A. Vicinanzo, Marx Calderon, Michael Strauss, W. Daniel Deane, Nathan P. Warecki and W. Scott O'Connell of Nixon Peabody LLP, Behzad Mirhashem of the Federal 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 the American Civil Liberties Union of New Hampshire, Henry Clay Quillen of Whatley Kallas LLP, Laurel Gilbert of Hinckley Allen & Snyder and John P. Newman of Newman Law Office PLLC.
The government is represented by Frances Susan Cohen of the Justice Department'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 of the District of New Hampshire.
The case is Robson Xavier Gomes v. DHS et al., case number 1:20-cv-00453, in the U.S. District Court for the District of New Hampshire.
--Editing by Jack Karp.
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