Angel De Jesus Zepeda Rivas v. Jennings

• Citation: 445 F.Supp.3d 36
• Decision Date: 29 April 2020
• Docket Number: Case No. 20-cv-02731-VC
• Parties: Angel De Jesus ZEPEDA RIVAS, et al., Plaintiffs, v. David JENNINGS, et al., Defendants.
• Court: U.S. District Court — Northern District of California

445 F.Supp.3d 36

Angel De Jesus ZEPEDA RIVAS, et al., Plaintiffs,

v.David JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC

United States District Court, N.D. California.

Signed April 29, 2020

William S. Freeman, ACLU Foundation of Northern California, San Francisco, CA, for Plaintiffs.

ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION, GRANTING MOTION FOR A TEMPORARY RESTRAINING ORDER, AND DENYING MOTION FOR A STAY

VINCE CHHABRIA, United States District Judge

A group of ICE detainees at the Mesa Verde Detention Facility and the Yuba County Jail have filed a proposed habeas class action challenging the conditions of their confinement. They contend they are at serious risk of becoming infected with Covid-19 because ICE has refused to alter conditions at the facilities so as to enable people to keep their distance from one another. The plaintiffs have filed a motion to provisionally certify a class of all detainees at the facilities, along with a motion for a temporary restraining order requiring ICE to take measures that will enable social distancing. The government, for its part, has moved for a stay of these proceedings in light of a separate case in which a federal judge certified a nationwide class of immigration detainees challenging ICE's overall response to the pandemic. The motion for provisional class certification is granted, as is the motion for a temporary restraining order. The motion for a stay is denied. As described more fully below, ICE is ordered to provide information to class counsel and to the Court to facilitate consideration of applications by detainees to be released on bail while this case is pending. In roughly 14 days, after individual bail applications have been processed, the Court will hold a preliminary injunction hearing to determine what measures, if any, ICE must take to ensure social distancing and other protections for the people who remain detained at the facilities. Because time is of the essence, and because federal courts around the country have addressed most issues raised by these motions (including the public health threat currently posed by crowded detainee populations and ICE's failure to respond), this ruling assumes that the reader is familiar with the legal arguments and factual materials submitted by the parties.

Provisional Class Certification

1. There is nothing about the procedural posture of this lawsuit—such as the fact that it seeks habeas relief or that it is on behalf of immigration detainees—that precludes provisional class certification.¹

2. The government's arguments regarding commonality, typicality, adequacy, and Rule 23(b) do not defeat class certification. At root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities. The primary question is whether the people detained at those facilities are being exposed to an unreasonable risk of infection in violation of the Due Process Clause. As the plaintiffs argue in their papers, "class members have suffered the same injury—the substantial risk of contracting COVID-19 due to the lack of social distancing—and all class members would benefit from the same remedy—an order requiring social distancing at Yuba and Mesa Verde." Dkt. 41 at 3. The likelihood that some people would need to be released as part of the effort to alleviate dangerous conditions at the jail (presumably by prioritizing people who have health vulnerabilities and whose records indicate they are not a danger to the community) does not change the ultimate relief the plaintiffs seek. And therefore it is not a reason to deny provisional class certification.² Nor, incidentally, is exposure to the virus a significant danger merely to people in high-risk groups; as explained in Savino v. Souza , it is dangerous to everyone. ––– F.Supp.3d at ––––, 2020 WL 1703844, at *7.³

Temporary Restraining Order

1. The Northern District of California is the proper forum for this action, as explained in Saravia v. Sessions , 280 F. Supp. 3d 1168, 1186–87 & n.9 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions , 905 F.3d 1137 (9th Cir. 2018).⁴

2. As many courts have explained, ICE detainees in this situation have standing to sue in federal court.⁵

3. On this record, the plaintiffs have demonstrated an exceedingly strong likelihood that they will prevail on their claim that current conditions at the facilities violate class members' due process rights by unreasonably exposing them to a significant risk of harm.⁶ There is no need to repeat a discussion of the "tinderbox" risk of the virus spreading in crowded detention facilities.⁷ Nor is there need to recount the health risks posed by the virus—not just for people in high-risk categories but for healthy people as well.⁸ In detention facilities throughout the nation, ICE has failed to take sufficient action to address the obvious health risks to detainees.⁹ And as several courts in this district have already explained, the same is true of ICE's performance at these local facilities.¹⁰ Although ICE has recently begun taking modest measures, it is undisputed that the agency has not come close to achieving social distancing for most detainees—for example, people are still sleeping in barracks-style dorms within arms-reach of one another.¹¹ What's more, at the hearing on these motions, counsel for ICE asserted that it will take a significant amount of time for the agency to prepare a list of detainees with health vulnerabilities because it is "burdensome." The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE's list of priorities.¹²

4. For similar reasons, the plaintiffs have demonstrated a strong likelihood of irreparable harm to the class.¹³ Although ICE notes that it has discovered no cases of Covid-19 at the two facilities, this is not especially comforting given that only two detainees have been tested.¹⁴ Moreover, people are regularly being transported from facilities with COVID-19 cases to Mesa Verde or Yuba County. For example, in the past several months, the Northern District of California has seen dozens of offenders sentenced for street-level drug crimes and transported on detainers from the Santa Rita Jail in Alameda County to these ICE facilities.

5. The public interest and the balance of hardships also counsels in favor of emergency relief to initiate the process of mitigating health risks at the facilities. The conditions of confinement do not merely threaten detainees; they also threaten facility staff, not to mention the greater community whose health is put at risk by the congregation of large groups in cramped spaces.¹⁵ As discussed in the next paragraph, the emergency relief ordered here—requiring ICE to provide information and access to detainees to facilitate a process of considering bail requests—will simply entail some hard work on ICE's part. And of course, as bail requests are considered, care will be taken both to avoid releasing detainees who are a danger to the community and to minimize the possibility that released detainees will fail to appear for their removal proceedings.

6. ICE is thus hereby ordered to provide the Court and class counsel with information and records regarding each detainee at the facilities. This includes names, ages, any health vulnerabilities, and any criminal information (including rap sheets and I-213 forms). ICE is also ordered to ensure that class counsel has the ability to promptly communicate with detainees. The purpose of this order is to enable the Court to implement a system for considering individual bail applications, modeled after a system created and successfully implemented by Judge Young in the District of Massachusetts.¹⁶ In extraordinary cases like this, federal judges have the authority to release detainees on bail while their habeas cases are pending.¹⁷ Judge Young, after certifying a class of ICE detainees at a facility in Massachusetts, considered bail requests as a precursor to a preliminary injunction hearing. Similarly, this Court—likely with the assistance of several Magistrate Judges—will consider bail applications from class members over a roughly 14-day period. After that period, the parties and the Court will have a better understanding of the number of people who will continue to be detained during the public health crisis, which in turn could affect the relief (if any) to be ordered by way of preliminary injunction to help ensure social distancing at the facilities. All information must be provided to the Court and class counsel on a rolling basis, but by no later than Friday at noon. A case management conference will take place Thursday at 4:00 p.m. for the purpose of assessing progress in compliance with this order, scheduling a preliminary injunction hearing, and discussing the process by which the Court will consider individual bail applications.¹⁸

7. ICE, while opposing any form of emergency relief, argued in its papers and at the hearing that if the Court is inclined to grant such relief, it should take a different form. Specifically, rather than being ordered to provide information that would permit the prompt consideration of bail requests, ICE asks that the Court simply order the agency to release a set number of detainees from the facilities. ICE does not specify the number of detainees it should be told to release. It has not explained how many of the detainees would pose a danger to the community if released. And it has not specified how many detainees would actually need to be released to alleviate the health risks at the facilities. It seems, at first glance anyway, that ICE is asking the Court to strike with a blunt instrument rather than using a more cautious and methodical approach to address the constitutional problem...