CREECblog

In Victory for Detained Immigrants, Federal Judge Orders ICE to Review for Release Every Person with COVID-19 Risk Factors

In sweeping ruling, ICE ordered to conduct new assessments for every person at heightened risk of contracting COVID-19 in the custody of ICE, regardless of immigration case 

FOR IMMEDIATE RELEASE

April 20, 2020

RIVERSIDE, Calif. – A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the COVID-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.

In his blistering rebuke of the government’s response to COVID-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.”

Martín Muñoz, a plaintiff in the case stated, “I was always very worried for my health in ICE custody for the three years I was detained. When the pandemic arrived, I felt even worse; I was resigned that something bad was going to happen and I felt lost. ICE never responded to me, they never took steps to protect me. I am so happy the judge is forcing ICE to take steps to protect others.”

 

Our clients have been living a nightmare, constantly terrified that they will become infected, knowing that ICE is doing little or nothing to prevent that,” said Timothy Fox, Co-Executive Director of the Civil Rights Education and Enforcement Center, “The court ruling today shows that it recognizes the potentially lethal threat that COVID-19 creates for our clients in ICE custody, and forces ICE to take immediate steps to reduce that threat, including release.”

 

“We are pleased the Court recognized the imminent dangers facing persons in ICE detention whose disabilities place them at increased risk during this pandemic,” said Stuart Seaborn, Managing Director of Litigation for Disability Rights Advocates, “and we will continue to be vigilant to ensure persons with disabilities are provided necessary precautions.”

 

“I feel so happy about this judge’s decision because I met so many people inside who were in really poor conditions and really need to be released,” said Mr. AJ Sanchez-Martinez, a recently released plaintiff of the case and preliminary injunction. “I used to tell people, ‘what you see in here from ICE is the worst of America.’ Now that I am out, I have it on my heart to continue to help the others still inside. Like when I was in detention, I used to help people with their motions and explain their cases to them,” continued Sanchez-Martinez. “Now, I can talk to people outside and they can know what’s really happening.”

The order comes amid an alarming spike in confirmed cases of COVID-19 inside detention centers. Recent numbers provided to Congress reveal that only 400 detained individuals have been tested for COVID-19, and of those, nearly one in three have tested positive. As the court noted, ICE exercises control over the size of its detention population as a whole, and thus determines one of the most important factors in the spread of disease: the density of the detained population.

Although the agency could immediately release thousands of individuals in its custody to preserve public health in the face of the pandemic, it has refused to do so. Officials stated Friday that ICE had released fewer than 700 medically vulnerable people. Today’s ruling opens the door to that relief to thousands of people.

“ICE acknowledged it has system-wide responsibility for the care of individuals in its custody, yet as the court correctly observed, its ‘piecemeal’ approach to COVID-19 prevention and management, inconsistent with CDC guidelines and best practices, has caused ‘turmoil, expense, and difficulty,” said Lisa Graybill, Deputy Legal Director with the SPLC. “ICE had time to act, and it failed. Fortunately, the court has ordered ICE to do what it should have done long ago: take appropriate measures to reduce risk to medically vulnerable individuals, or free them.”

The preliminary injunction requested that ICE be required to promptly assess medically vulnerable people for COVID-19 risk factors and either immediately implement medically necessary precautions consistent with CDC standards of care, or release them. If ICE could not or would not take medically necessary precautions, the motion requested immediate release of the medically vulnerable. In his order, Judge Bernal ruled ICE must conduct new assessments of every individual at heightened risk of contracting COVID-19 under their custody and make a new release determination, regardless of whether or not the individual has already applied for parole, habeas, or other forms of relief.

“Given the speed with which COVID-19 is spreading, permitting ICE to delay these necessary reforms will place countless lives in danger. Allowing the status quo to endure is a recipe for a public health disaster,” read an amicus brief filed on behalf of 16 doctors and public health experts said. “ICE has not—and cannot—take measures sufficient to blunt the spread of COVID-19 in ICE detention facilities,” continued the doctors. “The urgency for the Court to mandate these steps cannot be overstated.”

The preliminary injunction was requested as part of an existing class action lawsuit, Fraihat v. ICE, on behalf of the tens of thousands of people held in ICE facilities throughout ICE’s nationwide detention system. Last week, Judge Bernal denied the government’s motion to dismiss the lawsuit.

“Immigrants have a strong network of loved ones and community organizations that are ready to help them post-release. Drawing on these networks of support and infrastructure already in place, immigrants can transition into communities in a manner that continues to serve the public interest,” read another amicus brief filed by seven nonprofift organizations.

Until now, ICE has consistently failed to provide even the most basic public health protections inside detention centers. Its failure to take preventative measures – like providing adequate soap and hand sanitizer – puts individuals with underlying conditions in imminent danger of infection and death. ICE protocols did not consider trying to identify high-risk individuals, much less take the significant steps necessary to reduce the risk of contagion, illness, serious complications and death.

The full order can be read here.

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Disability Rights Advocates (DRA), founded in 1993, is the leading national nonprofit disability rights legal center.  Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases.  Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting, housing, and juvenile justice. https://www.dralegal.org.

Southern Poverty Law Center (SPLC) is dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society.  Through its Southeast Immigrant Freedom Initiative, SPLC provides direct representation to immigrants in remote, rural detention centers in two of the states with the highest numbers of detained individuals, Louisiana and Georgia.  https://www.splcenter.org/.

Orrick has 27 offices worldwide, and focuses on serving the Technology, Energy & Infrastructure and Finance sectors globally. Clients worldwide call on Orrick’s teams for forward-looking commercial advice on transactions, litigation and compliance matters.  https://www.orrick.com/en/About-Us.

Willkie Farr & Gallagher LLP is an international law firm of more than 700 attorneys with offices in New York, Washington, Houston, Palo Alto, San Francisco, Chicago, Paris, London, Frankfurt, Brussels, Milan and Rome. The Firm is headquartered in New York City at 787 Seventh Avenue. Tel: 212.728.8000. https://www.willkie.com/about-us

Detained Migrants Win in Federal Court: Judge Greenlights Nationwide Class Action Lawsuit  

Tens of thousands of immigrants denied medical care and disability accommodations by the federal government will have their day in court

A federal judge ruled today that a nationwide class action lawsuit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) can proceed, greenlighting a challenge to ICE’s system-wide failure to provide standard medical and mental health care and disability accommodations for people in its custody.

U.S. District Court Judge Jesus Bernal issued the ruling in the lawsuit filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick, Herrington & Sutcliffe LLP, and Willkie Farr & Gallagher LLP. The plaintiffs seek zero monetary damages and instead only an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.

Judge Bernal denied the government’s motion to divide the nationwide lawsuit into 15 individual cases in eight district courts. He also denied ICE’s motion to strike the 200-page complaint, which was filed in the U.S District Court for the Central District of California in August 2019.

The ruling comes amid the spread of Covid-19 in detention centers, a dangerous scenario that doctors and public health experts across the country have warned will only be made worse by ICE’s lack of pre-existing medical care and substandard detention center conditions. On March 25, the groups filed an emergency preliminary injunction motion in the case requiring ICE to immediately fix numerous deficiencies in its Covid-19 response, such as inadequate staffing, resources and oversight. The motion further seeks the immediate release of medically vulnerable people if  ICE cannot or will not take immediate steps to protect those who are in its custody. Judge Bernal has yet to rule on that injunction.

“ICE’s failure to ensure that private prison companies like the GEO Group adequately take care of people in their custody has been an open secret for a long time,” said Timothy Fox, co-executive director of the Civil Rights Education and Enforcement Center. “We are pleased that the court will allow us to move forward and hopefully end the impunity with which this agency and its private operators have been acting for too long.”

According to the lawsuit, ICE has failed to provide detained migrants in over 150 facilities nationwide with safe and humane conditions, as required by agency standards, federal law and the U.S. Constitution. Numerous reports, including accounts by internal government investigators, detail the lack of sufficient medical and mental health care treatment, ultimately resulting in untreated medical needs, prolonged suffering and preventable death. ICE’s punitive use of segregation violates the Fifth Amendment of the U.S. Constitution. The agency’s failure to ensure that detained immigrants with disabilities are provided accommodations and do not face discrimination violates Section 504 of the Rehabilitation Act of 1973.

“Mentally, they are killing us,” said plaintiff Ruben Mencias Soto. “What I am living and what I am seeing is not only my situation. This is unjust as a system. [The government] is falling to the lowest level with ICE.”

Mencias Soto, who has been detained at Adelanto ICE Processing Center in California for over a year, has dislocated and herniated discs in his back. He has had his wheelchair and crutches taken away by detention staff, leaving him without a device to help him walk and causing immense pain.

“Across the country, ICE continually fails to provide basic medical care and necessary disability accommodations to people in immigration detention – putting thousands of people in life-threatening danger every day. From holding people with disabilities in solitary confinement solely because of their medical needs to denying patients in detention doctor-ordered emergency medical care, ICE has demonstrated incompetence and cruelty toward people with disabilities. Disability Rights Advocates is committed to fighting for the civil rights of those in custody until ICE complies with the law,” said Stuart Seaborn, Managing Director of Litigation, Disability Rights Advocates.

“Today, the court rejected ICE’s false narrative that our plaintiffs’ stories represent just a few individual problems,” said Lisa Graybill, SPLC deputy legal director. “The court saw through ICE’s deliberate mischaracterization of our case. This is the first step in holding ICE to account for its appalling treatment of the tens of thousands of immigrants needlessly incarcerated and languishing in its prisons around the country.”

Plaintiff Jose Baca Hernandez underscored that the goal of the case is to “improve health for me and the rest of the people here [in detention]. This is not only for me. It’s so everyone here can be healthy.” During his time in custody, ICE failed to provide Baca Hernandez–a blind man–with effective communication. He has been forced to rely on his cellmates, attorneys, and guards to read documents, including those related to his medical care and immigration case.

Plaintiff Luis Rodriguez Delgadillo, who has schizophrenia and bipolar disorder, had reached a considerable measure of mental health stability before his detention. In detention, however, his shifting medication regime, lack of therapy and the failure of mental health staff to mitigate stressors have caused his mental health to noticeably decline. This case is about fighting to ensure “we all can get better treatment,” Rodriguez Delgadillo said. “Some people don’t have the means or are scared to speak, so we fight for everyone else.”

The parties will work with the court to set the schedule for the litigation of the case.

See plaintiffs’ opposition to defendants’ motion to sever and dismiss, transfer actions, and strike portions of the complaint here.

See the complaint here and all other filings in the case here.

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Disability Rights Advocates (DRA), founded in 1993, is the leading national nonprofit disability rights legal center.  Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases.  Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting, housing, and juvenile justice. https://www.dralegal.org.

The Southern Poverty Law Center (SPLC) is dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society.  Through its Southeast Immigrant Freedom Initiative, the SPLC provides direct representation to immigrants in remote, rural detention centers in two of the states with the highest numbers of detained individuals, Louisiana and Georgia.  https://www.splcenter.org/.

Orrick has 27 offices worldwide, and focuses on serving the Technology, Energy & Infrastructure and Finance sectors globally. Clients worldwide call on Orrick’s teams for forward-looking commercial advice on transactions, litigation and compliance matters.  https://www.orrick.com/en/About-Us.

Willkie Farr & Gallagher LLP is an international law firm of more than 700 attorneys with offices in New York, Washington, Houston, Palo Alto, San Francisco, Chicago, Paris, London, Frankfurt, Brussels, Milan and Rome. The Firm is headquartered in New York City at 787 Seventh Avenue. Tel: 212.728.8000. https://www.willkie.com/about-us

COVID-19 Response Focuses on Collaboration, Action & Impact

History shows that rights are even more likely to be threatened during – or shortly after – a crisis, during times of scarcity, and when fear predominates. Recognizing this, CREEC set in motion a three-pronged response at the onset of the COVID-19 pandemic. Our response employs strong collaboration and education, swift action for individuals in need, and broad impact litigation. In the last month CREEC has focused our resources on the following:

We believe that we’re stronger together.

Collaboration with sister organizations

CREEC joined dozens of organizations to write emergency letters and complaints in California, Colorado, Montana and Tennessee advocating for fair and legal treatment of the most vulnerable groups during this crisis, including:

Educating others to help

CREEC’s expertise in civil rights for people with disabilities, immigrants in detention, and at the intersection of immigration and disability rights is being put to good use preparing others to help some of the most vulnerable groups during this pandemic, including:

  • participating in a Denver Tele-Town Hall Meeting panel to discuss health care at the Aurora ICE Processing Center.
  • virtually presenting to law students at Temple University on the intersection of disability and immigration law during a time of COVID-19 emergency work.
  • collaborating with sister organizations to collect, organize, and share data to better inform COVID-19 legal responses (in progress).

We’ve mobilized additional resources for individuals in crisis.

Action on behalf of individuals

CREEC’s Immigration Detention Accountability Project (IDAP) Help Desk has been busy since the onset of the COVID-19 crisis. IDAP’s Help Desk was established to provide quick, effective technical assistance in our areas of expertise to immigration attorneys, advocates and directly impacted people. Since late February, the Help Desk has:

  • advised three habeas petitions for detained immigrants at the Adelanto ICE Processing Center which resulted in release.
  • filed two humanitarian parole requests related to COVID-19 complications.
  • referred five inquiries to immigration law providers for emergency representation.
  • collaborated with more than 50 medical professionals to increase advocacy for detained immigrants at risk of COVID-19 complications at the Aurora ICE Processing Center.
  • advised dozens of immigration attorneys and advocates on effective action for clients at risk of COVID-19 complications in ICE detention.

We continue to seek systemic change through class action litigation during the pandemic.

Broad impact work- more important than ever

Our plaintiffs in Fraihat v. ICE and all immigrants in detention, especially those who are medically vulnerable, are at dramatically increased risk for infection, serious long-term injury, and death from COVID-19. Soon after the pandemic was announced, CREEC and co-counsel filed an emergency application for a preliminary injunction seeking immediate steps to protect people in immigration prisons, and if that proves impossible, seeking their immediate release. Hearings on this request are scheduled for mid-April. Nearly 40,000 people are currently detained by ICE. Success in the courts with this preliminary injunction could result in thousands of saved lives.

Civil rights legal work is critical during the COVID-19 crisis and CREEC is in a unique position to help. As a small organization with the necessary expertise and broad, deep connections within the disability rights and immigration rights communities, CREEC can pivot and respond quickly. “COVID-19 poses a dire threat to people in prisons, detention centers, and other congregate settings. CREEC is proud to play a role in trying to protect these people,” says Tim Fox, Co-Executive Director.

CREEC is committed to continued response to new and shifting needs as this pandemic and resulting economic crisis unfold while also maintaining work on existing, high priority cases and advocacy unrelated to COVID-19.

Are you interested in supporting CREEC and our work during COVID-19?

Are you able to give at this time?

Donate Now!

New Initiative – IDAP Help Desk

Recently CREEC’s Immigration Detention Accountability Project (IDAP) expanded its services to include a robust Help Desk component. The number of migrants and asylum seekers who are being detained in immigration prisons or denied entry at the U.S. border has increased dramatically; so, too, has the number of medically vulnerable and people with disabilities in that population.

The conditions for people with disabilities and the medically vulnerable who are detained in immigration jails are stark and their rights are routinely infringed or completely ignored. Many immigration attorneys, advocates, and directly impacted people on the frontlines of this crisis need additional support as they work at the intersection of disability and immigration law. CREEC can help.

CREEC’s Help Desk was established to provide quick, effective technical assistance in our areas of expertise to those who will benefit the most. Given the ever-growing human and civil rights violations at our borders and in immigration prisons, and further complicated by the COVID-19 pandemic, we anticipate significant growth in the need for the kind of technical assistance CREEC can provide.

Overall, the Help Desk has given assistance to more than 50 people since its inception. Below are just a few recent examples of people who have received assistance through CREEC’s Immigration Detention Accountability Project Help Desk.

Anderson Avisai Gutierrez

Mr. Anderson Avisai Gutierrez is a 27-year-old Guatemalan asylum seeker detained at the LaSalle Detention Facility in Jena, Louisiana. Despite an attempt to die by suicide and severe mental health disabilities, Mr. Gutierrez has been placed in solitary confinement for over eight months, where his mental health has further deteriorated.

Jennifer Savage, a volunteer with Louisiana Advocates for Immigrants in Detention, said this about Mr. Gutierrez’s situation, “Throughout our weeks of visitation, Mr. Gutierrez has always been courteous and easily engaged. However, he also has appeared to me to be extremely distressed with his prolonged detention and filled with such despair. He has been in detention now for 13 months, eight of them in solitary confinement. He has not received the mental health follow-up he has required.”

CREEC learned of Mr. Gutierrez’s case through the Help Desk and took swift action.

“Prolonged solitary confinement amounts to inhuman treatment and it’s a serious violation of Mr. Gutierrez’s rights under federal disability laws,” said Pilar Gonzalez Morales, senior staff attorney at CREEC. “Mr. Gutierrez has the right to receive accommodations for his multiple disabilities, but instead ICE and its subcontractors have chosen to place him in solitary confinement because of those disabilities. ICE’s failure to provide accommodations and to place him in a less restrictive environment are reasons enough to grant humanitarian parole so that he can receive appropriate, community-based care that he desperately needs.”

Working with several other advocacy organizations, CREEC filed a complaint on March 13, 2020 against the U.S. Immigrations Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the LaSalle ICE Processing Center on behalf of Mr. Gutierrez for violation of his civil, constitutional, and disability rights with the DHS Office of Civil Rights and Civil Liberties. As a result, a full and active investigation is underway.

The Florence Immigrant and Refugee Rights Project (FIRRP)

Recently, CREEC collaborated with The Florence Immigrant and Refugee Rights Project (FIRRP) on two recent cases, both of which resulted in the individual’s ability to pursue their asylum claims outside of detention.

In one case, CREEC advocated for the release from detention of an asylum seeker with mental health disabilities and autism. In another, CREEC requested the non-detention of an asylum seeker at the border who has intellectual disabilities. Both individuals were granted humanitarian release and will be able to pursue their asylum claims outside of detention.

The anguish experienced by many people at our U.S. border and in our immigration prisons is real and only getting worse. Recognizing the need for an individualized and comprehensive approach that draws on multiple areas of legal, medical, and humanitarian aid expertise, CREEC began the Help Desk initiative.

Elizabeth Jordan, Director of IDAP states, “Together we can make a difference in the lives of our migrant and asylum-seeking friends, family, and neighbors. CREEC has the litigation, civil rights, and disability rights expertise to help immigration attorneys, advocates, and directly impacted people on the front lines.”

Are you interested in supporting the Help Desk initiative and CREEC?

Are you able to give at this time?

Donate Now!

Letter to Gov. Polis Urging Protection of Rights and Access to Care of People with Disabilities During COVID-19 Pandemic

CREEC and 19 other organizations sent this letter to Colorado Governor Jared Polis. You’ll find the complete list of participating organizations in the signature section of this letter. All footnotes and links to signatory organizations are at the end of the letter.

March 25, 2020

Re: Survival of People with Disabilities during COVID-19 Pandemic

Dear Governor Polis,

We want to start this letter by thanking you for your extraordinary leadership during this crisis. Unlike our peers in other states, we are being included in policy decisions and working closely with members of your team (like Elisabeth Arenales) and your cabinet (Kim Bimestefer, Michelle Barnes, Jill Hunsaker-Ryan, and others). We appreciate being involved and allowed to help your administration make the best possible decisions in a horrible situation.

People with disabilities and chronic health conditions are doubly vulnerable during the COVID-19 crisis: they are vulnerable to acquiring the virus and to suffering more severe effects, and they are vulnerable to healthcare discrimination that may deny them necessary care. As a result, Coloradans with disabilities and chronic health conditions are experiencing escalating fear and anxiety, on top of any physical effects of viral illness. We need your continued leadership to communicate and ensure that Colorado will protect the rights and access to care of disabled people of all ages.

Colorado has a strong and united disability community that includes ADAPT, Centers for Independent Living, Arc Chapters, Disability Law Colorado, numerous organizations representing specific disability groups such as the Colorado Metal Wellness Network, the National Federation of the Blind Colorado chapter, and the Colorado Commission for the Deaf, Hard of Hearing, and DeafBlind. The Colorado Cross-Disability Coalition (CCDC) is the largest statewide organization run by and for people with all types of disabilities and we are working to coordinate with this amazing community to help with ongoing information dissemination and input to your team on policy issues. We are lucky to have such a strong and united community. This letter is written on behalf of many of these organizations, we wanted to get it out quickly so did not put extended time into sign-ons, but please note the organizations signed on below.

CCDC and others thanks you for the swift and decisive actions that you have taken to protect the people of Colorado from COVID-19, reduce community spread, and flatten the curve. Your leadership will protect people with disabilities and their families from the virus’s accelerating spread, including daily increases in the deaths. Our community now asks that you take the following actions to ensure that people with disabilities receive equitable and effective healthcare in Colorado which will, in turn, help maintain the health of all Coloradans.

Prevent and Prohibit Medical “Rationing” Based on Disability

 The prospect of shortages of medical staff and equipment for treating those made severely ill by COVID-19 has triggered discussion of “rationing” medical care.

While the coronavirus crisis poses serious challenges to our social and health care systems, federal laws including the ADA, Section 504, Section 1557 of the ACA, and the Colorado Anti-Discrimination Act (CADA) prohibit any “rationing” measures by public or private entities which discriminate on the basis of disability. Denying care to disabled individuals who are likely to benefit from care is unlawful.

Moreover, swift and efficient action now may prevent or ameliorate the need for untenable rationing decisions. There are additional reserves of ventilators and other medical equipment and supplies maintained by hospitals and the U.S. Department of Defense and the Centers for Disease Control and Prevention.1 Colorado must follow its own policy statements to ensure that these stockpiles are allocated based on objective need – and distributed throughout the state of Colorado so that health care workers have them on site.2 If existing numbers are projected to be insufficient, Colorado must procure additional equipment and supplies.

People are looking for factual information, honestly, and assurances. As Governor, you are the best person to speak out about the state’s efforts to alleviate widespread fear and anxiety among vulnerable populations, including Coloradans with disabilities.

We further urge the Governor and state agencies to swiftly issue a directive to health plans and insurers, hospitals, and other medical providers on maintaining their obligations under state and federal disability nondiscrimination laws during the coronavirus crisis, including in the allocation of scarce medical resources. Such guidance should include the following basic principles:

  • The presence of a disability, including a significant disability, is not a permissible basis for denying people access to care or giving them a lower priority for care.
  • The fact that a disabled person may have a lower likelihood of survival is not a permissible basis for denying care or allocating the person a lower priority for care. If the person will benefit from care, then they are entitled to access care on an equal basis as others.
  • The fact that a person with a disability may require reasonable accommodations during treatment, or more intensive treatment, is not a permissible basis for denying care or allocating the person a lower priority for care.
  • All medical decisions about providing care must be based on current objective medical evidence, and not based on generalized assumptions about a person’s disability. Treatment decision shall not be made based on misguided assumptions that people with disabilities experience a lower quality of life.

Covered entities should be permitted to prioritize those with a greater urgency of need, and delay non-urgent care. They need not allocate scarce resources to individuals with no reasonable chance of survival. But people with disabilities should not face discrimination in seeking life-sustaining care that they will benefit from. The lives of people with disabilities are equally valuable to those without disabilities, and healthcare decisions based on devaluing the lives of people with disabilities are discriminatory. Benefit should be derived solely based on medical evidence, not a belief about the life of the patient.

Ensure Access to Home-and Community-Based Services and Related Services

Individuals with various disabilities who rely on personal care assistance face a dilemma during the COVID-19 crisis. No person with a disability should have to choose between catching a potentially deadly new virus and receiving the assistance needed to perform critical activities of daily living such as toileting, eating, dressing, etc. Personal care assistants whether paid or unpaid, should not be required to perform their duties without proper protective equipment to ensure both their own well-being as well as the continued well-being of their own families and other clients with disabilities, or face the ethical dilemma of rendering necessary duties while beginning to feel sick.

The following measures are needed to preserve the well-being of people with disabilities while they shelter in place:

  • Fund paid sick leave for any personal care worker unable to work regularly scheduled shifts because of illness or the need to quarantine due to exposure. This must also cover any Medicaid consumer-directed or private pay client. Grants to small home health agencies should be made available to allow them to pay their workers. Larger agencies should be required to do the same.
  • Fund and establish backup personal care assistant (PCA) registries, for both public and private pay PCAs, and establish streamlined on-call emergency back- up alternatives to ensure PCA services when scheduled PCAs are unavailable.
  • Place a moratorium on Medicaid LTSS reassessments that could lead to service hour reductions and consider revising overtime rules.
  • Provide and efficiently distribute protective gear for paid and unpaid PCAs, including family, friends, and volunteers who are providing personal attendant services. To the extent that shortages make this impossible, provide funding for substitute items such as cleaning gloves, industrial respirators, scrubs, garbage bags, etc.
  • Continue to include disability-specific providers (whether formal or not, paid or not) within guidance on categories of “essential business” and “essential personnel,” such as public and private personal care attendants, public transit and paratransit, privately contracted Non-Emergency Medical Transportation (NEMT) providers, durable medical equipment providers/repairers, and veterinarians.

Even short gaps in coverage of personal care attendants and related services can lead to worsened health and unnecessary hospitalization or institutionalization, contrary to the integration principles adopted by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). These risks are sharply heightened by the dangers posed by the coronavirus.

CCDC and the signatories below urge the following additional steps to ensure that disabled Coloradans are safe in their homes and communities with supports during the COVID-19 crisis:

Ensure that accurate and up-to-date information about the progression of COVID-19 within Colorado is fully accessible in alternative print and online formats.

  • We appreciate seeing the sign language interpreters at all of your press conferences. Please make sure videos are always captioned properly (just turning on You Tube captioning does not work). We appreciate the remarkable responsiveness of your staff, especially the Lt. Governor’s Chief of Staff Crestina Martinez, Maria De Cambra on your Communications team and Theresa Montano in OIT, when there has been an error in document accessibility. We hope that process improvements to assure no document goes up that is not fully accessible to people that use screen reading technology are prioritized.
  • We also urge that essential documents are quickly translated into threshold languages, adapted for people with lower reading abilities, and made available in American Sign Language and captioned videos. This must apply not only to Executive Orders but to instructions that are important including how to apply for unemployment, testing protocols, prevention protocols, etc.
  • Require all private insurers operating in Colorado to provide fully accessible, current, clear, and readily available information about in-network and out-of- network coverage of COVID-19 testing and treatment.
  • Require public utilities and internet providers to maintain gas, electricity, water, telephone, and internet services for seniors and people with disabilities sheltering in place.
  • Ensure that public and private insurance prioritization of healthcare procedures consider not only the category of procedure before cancelling or delaying it as “elective/non-urgent,” but also the underlying conditions and cross-disability needs of the person who will be undergoing a scheduled procedure.
  • Continue provision of ADA paratransit, NEMT, and accessible on-demand service for passengers, including trips to the grocery store, medical facilities, and COVID-19 testing sites. Maintain ADA paratransit service areas even where bus routes are cut or reduced like areas such as Summit and Gunnison.
  • Protect passengers and workers by ensuring provision of adequate protective gear and cleaning supplies for transit workers, including NEMT providers and janitorial support staff.
  • Place a comprehensive state-wide moratorium on evictions and a hold on termination of public benefits, including all administrative actions that result in individuals being cut off from public benefits. We also ask that any fraud investigations be suspended as this is not a good use of money or resources and could endanger at risk individual.

Ensure Legal Services and Prompt Affirmative Responses to the Potential Violations of Rights of Disabled Coloradans.

 We ask that Colorado take steps to bolster financial and human resources in Colorado’s legal service organizations to ensure that they have – the capacity to provide timely representation for individuals who face unlawful medical “rationing” based on disability, any unnecessary and involuntary institutionalization, evictions, benefits issues and other forms of discrimination in COVID-19 treatment and testing.

From past disasters, we know that legal services needs tend to peak 2-12 months after the disaster “ends”. Additional legal services support will be required for the next year. Specifically Disability Law Colorado, Colorado Legal Services, Colorado Cross- Disability Coalition, Civil Rights Education and Enforcement Center, and The Colorado Center for Law and Policy will need support to meet the legal needs of low-income Coloradans with Disabilities.

We further ask that you ensure that Colorado and its agencies respond immediately and effectively to any reports or complaints indicating that the rights of people with disabilities are being violated. While this must include prioritization and streamlining of administrative complaint procedures at all relevant agencies to respond affirmatively and forcefully to any formal or informal report.

Our state has long been a leader in many aspects of healthcare, accessibility, and civil rights protections for people with disabilities. Colorado, as the home of the Atlantis Community, the organization that created ADAPT is the birthplace of the internationally- known disability rights movement. Help us to maintain our reputation as a leader in preserving the rights of people with disabilities. We would welcome the opportunity to continue to work with your administration on ensuring that people with disabilities in our state receive equal and effective healthcare during the COVID-19 crisis under the priorities detailed above.

Sincerely,

Julie Reiskin, Executive Director, Colorado Cross-Disability Coalition

Ailsa Wonnacott, Association for Community Living, Boulder and Broomfield Counties

Martha Mason, Executive Director, Region Southwest Center for Independence

Wilfred Romero, The Arc – Pikes Peak

Darla Stuart, Executive Director, The Arc of Aurora

Larry McDermott, The Arc of Weld County

Timothy Fox, Attorney at Law, Senior Partner, Civil Rights Education and Enforcement Center

Sara Froelich, Chronic Care Collaborative

Lisa Franklin, Executive Director, Parent to Parent

Candie Burnham, Executive Director, Atlantis Community, Inc.

Robert A. Lawhead, Colorado Developmental Disabilities Council

Christiano Sosa, Executive Director, The Arc of Colorado

Hope Hyatt, Colorado Mental Wellness Network

Christine Fallebell, The American Diabetes Association

Ian Engle, Executive Director, Northwest Colorado Center for Independence

Jessalyn Hampton, National MS Society

Judith I. Ham, Ability Connection Colorado

Eileen Doherty, Colorado Gerontological Society

Barbara Henry, Domino Service Dogs

Linda Skaflen, Executive Director, The Arc of Adams County

Footnotes:

  1. Dan Lamothe, “Pentagon offers respirators, ventilators and labs in expanding coronavirus response,” Washington Post (Mar. 17, 2020) (describing release of 5 million masks and 2,000 ventilators from military stockpile), https://www.washingtonpost.com/nationalsecurity/2020/03/17/pentagon-offers- respirators-ventilators-labs-expanding-coronavirus-response/;
  2. Surge Standards, Foundational Knowledge, § 8.4.3, Allocation of Ventilators for Pandemic Influenza, http://www.cidrap.umn.edu/sites/default/files/public/php/258/258_foundation.pdf (“[T]he allocation of ventilators from State and federal stockpiles must take into account the ratio of local populations to available resources, designating appropriate resources for the most vulnerable who are most likely to suffer the greatest impact in any disaster.”).

Links to all signing organizations:

Colorado Cross-Disability Coalition, Association for Community Living, Region Southwest Center for Independence, The Arc – Pikes Peak, The Arc of Aurora, The Arc of Weld County, Civil Rights Education and Enforcement Center, Chronic Care Collaborative, Parent to Parent, Atlantis Community, Inc., Colorado Developmental Disabilities Council, The Arc of Colorado, Colorado Mental Wellness Network, The American Diabetes Association, Northwest Colorado Center for Independence, National MS Society, Ability Connection Colorado, Colorado Gerontological Society, Domino Service Dogs, The Arc of Adams County

TDOC Needs to Stop Denying Effective Communication

Today, CREEC and Disability Rights Tennessee (DRT) filed a Complaint seeking access to effective communication for deaf and hard of hearing individuals in Tennessee Department of Correction (TDOC) custody as required by law.

 

Kevin Trivette is deaf and his primary language is American Sign Language (ASL); like many people who are deaf, he understands English only as a second language. While in the custody of the Tennessee Department of Correction (TDOC) Mr. Trivette was repeatedly denied crucial – and legally mandated – sign language communication for medical appointments, required classes, and religious services. TDOC also denied him a videophone, which he needed to communicate with his loved ones. Unfortunately, Mr. Trivette is not alone. TDOC routinely denies deaf and hard of hearing inmates qualified sign language interpreters and videophones. These unlawful and potentially harmful denials of effective communication to deaf and hard of hearing individuals who are incarcerated is a pattern of behavior at TDOC.

Today, Civil Rights Education and Enforcement Center (CREEC) and Disability Rights Tennessee (DRT) filed a Complaint in the federal district court for the Middle District of Tennessee on behalf of Mr. Trivette and DRT. The suit is based on violations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The ADA and Section 504 require that state prisons provide inmates in their custody with equal access to programs and services, including providing sign language interpreters and videophones when needed for effective communication, and equal access to phone privileges.

“I want people to know deaf people have rights. We need access to communication for things like doctor’s appointments and classes. Writing notes isn’t enough — we need information in our first language, ASL. I want deaf and hard of hearing inmates to be treated like other inmates, not as less than. I don’t want other deaf inmates to have the same problems I had and I hope this lawsuit makes TDOC fix these problems so that current and future inmates have equal access to communication,” said Kevin Trivette, plaintiff.

low concrete prison building in TN behind a chainlink fence

Photo credit: TN.gov

This is far from the only example of TDOC’s failure to provide deaf and hard of hearing inmates with required effective communication. Despite repeated advocacy by DRT on behalf of deaf and hard of hearing incarcerated people, TDOC has, for years, systematically and repeatedly denied deaf and hard of hearing inmates qualified sign language interpreters during critical communications involving medical care, classification, religious services, and optional and mandatory educational classes. As a result of this unlawful denial, deaf and hard of hearing inmates in TDOC custody regularly do not have access to adequate health care or to critical programs and services designed to prepare them for successful reentry. Furthermore, TDOC’s current failure to provide working videophones is not only discriminatory; it prevents communication between deaf and hard of hearing inmates and their loved ones who themselves may be deaf or hard of hearing. This increases feelings of isolation, loneliness and confusion during the best of times, let alone during times like the current pandemic.

While Mr. Trivette is now on parole and not currently subject to TDOC’s discriminatory practices, he and the organizational plaintiff DRT are determined to make the situation better for current and future deaf and hard of hearing inmates held in TDOC facilities.

 “By not providing sign language interpreters to deaf and hard of hearing inmates, TDOC is denying these individuals the ability to take educational classes, get their GEDs, and learn skills that will help them lead productive lives upon release. More than that, TDOC is discriminating against these individuals based on their disabilities, and that is illegal under federal law,” said Stacie Price, attorney at Disability Rights Tennessee.

“This year marks the 30th anniversary of the ADA. It is outrageous that TDOC continues to treat deaf and hard of hearing inmates as second-class citizens. These inmates deserve equal access to communication. TDOC must be held accountable for its discrimination against Mr. Trivette and others,” said Martie Lafferty, Director of the Accessibility Project at Civil Rights Education and Enforcement Center.

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Disability Rights Tennessee (DRT), formerly Disability Law & Advocacy Center of Tennessee, is the designated protection & advocacy agency for Tennessee. DRT provides free legal advocacy services to protect the rights of Tennesseans with disabilities. For 40 years, DRT has served over 50,000 people through direct services, education, and systemic advocacy.  https://www.disabilityrightstn.org/

 

Disability Discrimination Complaint Filed Over COVID-19 Treatment Rationing Plan in Tennessee

CREEC and other disability rights advocacy organizations joined Disability Rights Tennessee (DRT) and The Arc Tennessee (The Arc TN) to file a Complaint with the Office of Civil Rights for the U.S. Department of Health and Human Services on Friday, March 27, 2020 about Tennessee’s Guidance for the Ethical Use of Scarce Resources during a Health Emergency.

As COVID-19 cases increase, the experience in other countries and predictions of United States health officials is that there will not be enough acute care services or equipment, such as ventilators, to meet the demand of
patients with the virus who require intensive treatment. Health care professionals in the U.S. are already developing protocols for responding to COVID-19, including treatment rationing that will determine who will and will not have access to life-saving treatment.

The complaint voices grave concern that Tennessee’s guidelines for rationing discriminate against people with disabilities in violation of federal disability rights laws, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (ACA) and place their lives at serious risk. This complaint about Tennessee’s guidelines along with similar complaints about guidelines in other states call upon the OCR to take immediate action to address this discrimination and assist states and health care providers to develop non-discriminatory approaches before there are lethal consequences to application of these illegal policies.

 

 

CREEC and Co-Counsel File Preliminary Injunction in Fraihat v ICE Case

CREEC and Co-counsel Seek Emergency Court Ruling for Immediate COVID-19 Protections for People in Immigration Jails

Early this morning, CREEC and others filed an emergency application for a preliminary injunction in the U.S. District Court for the Central District of California seeking a court order requiring that Immigration and Customs Enforcement (ICE) take immediate steps to protect people in immigration detention facilities from COVID-19, particularly those at heightened risk. The motion immediately follows ICE’s own admission of the first confirmed positive case of COVID-19 of a person in ICE detention. man on a street wearing a surgical face mask. overlay text says, "Approximately 40,000 people are detained by ICE. Protect the from COVID-19.

The motion argues that if ICE cannot or will not immediately take steps to ensure that medically vulnerable people are protected from COVID-19 – including providing timely access to qualified and necessary healthcare – then the Court should order ICE to release those individuals in the interest of public health.

Dr. Jaimie Meyer, Assistant Professor of Medicine and Assistant Clinical Professor of Nursing at Yale notes, “The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.

The preliminary injunction is being requested as part of an existing class action lawsuit, Fraihat v. ICE, on behalf of the nearly 40,000 people held in ICE immigration jails throughout ICE’s detention system. Based on first-hand observations from attorneys serving clients inside detention centers and direct reports from people who are detained, the current conditions are medically dangerous and fail to meet standard public health recommendations for addressing the pandemic.

Jimmy Sudney, Plaintiff in Fraihat v. ICE states, “I have several medical conditions that make me vulnerable to COVID-19…Even if they did tell us to stay away from others, it is impossible to do so in detention because there are so many people who share one dorm.”

Bringing ICE’s cavalier and inhumane treatment into full-focus, Fraihat v. ICE Plaintiff, Martin Munoz states,

 “Several weeks ago, I asked an ICE official what the plan was for me because I am older and at risk for a bad COVID-19 infection. He laughed at me and told me I did not qualify for anything.”

According to the court filing, ICE has not provided even the most basic public health protections inside immigration jails. Its failure to take preventative measures – like reducing crowding to implement social distancing or providing soap and hand sanitizer – places individuals with underlying conditions including asthma, heart conditions, compromised immune systems, and other serious health conditions in imminent danger of infection and death. Current ICE protocols do not even consider trying to identify high-risk individuals, much less take the significant steps necessary to reduce the risk of contagion, illness, serious complications, and death.

The threat of COVID-19 compounds the existing inhumane conditions in detention centers already highlighted in the lawsuit. In several instances, detention centers have not provided any information about COVID-19 to detained people, meaning they do not know the symptoms or how to even try to protect themselves from infection.

Karen Zwick, Director of National Immigrant Justice Center remarks, “Our clients also universally report that neither ICE nor facility staff have provided them with meaningful information or education about the pandemic, leaving the to manage their anxieties- and medical issues – with little or no reliable information about what precautionary measures they could be taking.”

If the preliminary injunction is granted, ICE would be required to immediately assess medically vulnerable people for COVID-19 risk factors and either immediately implement medically necessary precautions consistent with standards of care, or release them. Additionally, ICE would immediately be required to provide basic protections such as providing ample soap and hand sanitizer, protocols for transporting people to the hospital, and appropriately testing and treating anyone with COVID-19 symptoms.

The motion seeks the release of those in detention if ICE cannot take medically necessary precautions.

Carlos Franco-Paredes, Infectious disease clinician, comments, “A large outbreak of COVID-19 in an immigration detention facility would put a tremendous strain on the medical system to the detriment of patients in the communities surrounding these centers. It is reasonable to anticipate that there will be the loss of additional lives that could have otherwise been saved.” 

Declarations from people in detention, medical experts, and legal providers detailing the conditions inside immigration jails across the country are available.

The organizations filing for the preliminary injunction and litigating Fraihat v. ICE are Civil Rights Education and Enforcement Center, Disability Rights Advocates, and the Southern Poverty Law Center. Law firms Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP are serving as pro bono co-counsel.

###

Civil Rights Education and Enforcement Center (CREEC) is a nonprofit membership organization whose goal is to ensure that everyone can fully and independently participate in our nation’s civic life without discrimination based on race, gender, disability, religion, national origin, age, sexual orientation, or gender identity. https://creeclaw.org/.

 

Disability Rights Advocates (DRA), founded in 1993, is the leading national nonprofit disability rights legal center.  Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases.  Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting, housing, and juvenile justice. https://www.dralegal.org.

 

Southern Poverty Law Center (SPLC) is dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society.  Through its Southeast Immigrant Freedom Initiative, SPLC provides direct representation to immigrants in remote, rural detention centers in two of the states with the highest numbers of detained individuals, Louisiana and Georgia.  https://www.splcenter.org/.

CREEC and 13 Others Send COVID-19 Letter in Support of Immigrants in Detention in Adelanto, CA

Today CREEC and 13 other organizations sent this letter to DHS, ICE and Geo Group officials at the Adelanto Detention Facility in California (where some Fraihat plaintiffs are located). You’ll find the complete list of participating organizations in the signature section of this letter.  All footnotes and links to signatory organizations are at the end of the letter.

March 13, 2020 

Re: Requesting Parole for COVID-19 Vulnerable Adelanto Detainees

Dear Field Officers David Marin, Gabriel Valdez, Art Cortez, and Warden James Janecka:

We write on behalf of immigrant legal service providers in Southern California to voice our concern about the urgent humanitarian crisis that COVID-19 presents for our clients and the overall detainee population Adelanto Detention Facility (“ADF”). For the foregoing reasons, we request, among other things, that Immigration and Customs Enforcement (“ICE”) immediately grant humanitarian parole to all vulnerable persons in detention, eventually evaluate all ADF detainees for humanitarian parole, and inform detainees of their right to seek humanitarian release. To that end, we request a meeting with you no later than Thursday, March 19, 2020, to discuss our concerns.

The World Health Organization officially declared COVID-19 a pandemic, yet ICE has neither announced nor published concrete plans or protocols for screening, mitigating, and treating the virus at ADF. This silence is especially troublesome considering the heightened risk of uncontrolled transmission among persons living in close quarters, DHS’ own Inspector General and the State of California repeatedly condemning the substandard medical conditions at ADF, and DHS’ March 10, 2020, confirmation to the LA Times that four detainees were under observation for infection.1

As you know, ADF has struggled to control infectious disease outbreaks and routinely resorts to en masse quarantines. COVID-19, however, is unlike any infectious disease that ADF has experienced. Its transmission rate will be significantly higher than that of mumps, measles, or chickenpox, because no so-called “herd immunity” exists against the virus, i.e., there is no population with immunity. For this reason, we have seen COVID-19 rapidly spread within our communities and throughout the world.2 At ADF, detainees face heightened risk of infection due to their overly-crowded and poorly-ventilated living spaces.3

With capacity for 1,940 beds, ADF is the second largest immigrant detention center in the country. Mass-human contact is inevitable here because an individual must share their cell with up to seven other people while being confined to a barrack that holds nearly 100 others.4 Medical professionals unanimously agree: “People residing in close living quarters [like those in ADF] are especially vulnerable to COVID-19 and will need special attention both to minimize transmission risk and address their healthcare needs in the context of an outbreak.”5 Simply put, the quarantine methods used for common disease outbreaks at ADF cannot control transmission of COVID-19.

Additionally, ADF’s reoccurring failure to provide adequate medical care significantly increases the likelihood that a COVID-19 outbreak will be fatal. DHS’ own Inspector General confirmed as much, finding “detainees do not have timely access to proper medical care,” and that ADF’s medical practices fall even below ICE’s own minimum standards.6 ICE has yet to cure these deficiencies and is most certainly in no position to handle the imminent and overwhelming medical crisis that COVID-19 brings.7

The risks of continued detention at ADF are potentially fatal for persons who are elderly, immuno-compromised, or who have long-term health conditions. This risk, however, is not limited to persons with diagnosed health conditions; it impacts all detainees by virtue of their exposure to untreated mold that pervades the facility and ADF’s indifferent healthcare culture.8  Simply put, persons detained at ADF are sitting ducks for a fatal COVID-19 infection.

The Agency’s March 10, 2020, statement given to Congressional Quarterly Roll Call in response to growing community concerns does nothing to quell our well-founded fears and is further proof that ICE cannot handle an outbreak at ADF.9 The new “screening guidance” for incoming detainees ignores the risk of infection from current detainees and officers. Even more troubling, the plan to house all infected detainees collectively in an airborne infection isolation room outright ignores that treatment for COVID-19 requires individuals be housed separately under the care of licensed medical professionals equipped to treat COVID-19.

At this point in the COVID-19 pandemic, there are no swift and effective remedial measures that could prevent or mitigate a potentially-fatal COVID-19 outbreak at ADF.10  Fortunately, ICE has wide discretion to release detainees and ought to exercise its authority given these urgent humanitarian circumstances. ICE may release persons under its parole authority. See INA § 236(a)(2)(B); 8 C.F.R. § 212.5(b)(1)–(2) (providing release of persons with “serious medical conditions in which continued detention would not be appropriate,” and pregnant women). Additionally, there is limited risk to ICE when paroling individuals from its custody through its alternatives to detention program, which provides for GPS ankle-monitors or regular home site visits and check-ins with deportation officers.  This response would remove detainees from   a dangerous environment through a program with “empirically demonstrated effectiveness … at meeting the government’s interest in ensuring future appearances.” Hernandez v. Sessions, 872 F.3d 976, 991 (9th Cir. 2017).

It is beyond dispute that ADF’s medical facilities, treatment resources, and employees are ill- equipped to respond to this rapidly evolving pandemic. ICE is wholly responsible for protecting the health and wellbeing of the nearly 2,000 people detained at ADF. It is critical that you take immediate measures to protect those in your care from COVID-19. We therefore strongly urge you to exercise your discretionary authority and take the following proactive and protective measures:

  • Immediately grant humanitarian parole and release the most vulnerable detainee population, including individuals who are fifty years or older, who have medical conditions, or who are immuno-compromised.11 Continued confinement of this particularly vulnerable group is a gross violation of their civil rights and liberties and exposes them to a government-created danger. ICE can easily identify such individuals through its detainee intake form and medical records, and by having detainees self-identify. The de minimus administrative burden of identifying impacted people surely does not outweigh the importance of protecting high-risk detainees from this fatal infection.
  • Evaluate the remaining detainee population for humanitarian release soon thereafter. In the event of an outbreak, ADF is institutionally and physically incapable of safely housing hundreds of detainees for the reasons described above. After releasing the most vulnerable detainees from ADF, ICE should then evaluate remaining persons for immediate release. Their continued detention will guarantee a widespread and uncontrollable outbreak and therefore demands swift, preventative action.
  • Inform detainees of their right to seek humanitarian release. Provide detainees with up-to-date information about COVID-19 so persons can self-identify and understand the health risks of continued detention. This is crucial, as many detainees have relevant medical histories or conditions not known to ICE, such as chronic smokers, persons with prior respiratory conditions, and individuals with other undiagnosed conditions.
  • Ensure any detainee who remains in the facility, whether under medical quarantine or not, has ongoing access to confidential communication with prospective and current counsel. Any person who remains at ADF during the pandemic—whether in medical quarantine or not—must have ongoing access to confidential communication with their attorneys, prospective attorneys, and the Legal Orientation Program. This communication should remain in-person to the fullest extent possible and, where not possible, should be facilitated through confidential phone and televideo calls at no cost to the person in detention.
  • Ensure detainees have access to their hearings in immigration court and promptly notify the court in the event a detainee’s medical status prevents their appearance. If EOIR continues to remain open, detainees must have full access to the courts with the option of making in-person appearances. ICE must provide adequate medical safeguards and accommodations to ensure that no one is forced to choose between their health or an in-person court appearance.

Given the dangers unique to ADF, the signatories to this letter request a meeting with ADF and ICE personnel to discuss our concerns and recommendations. The rapidly expanding health crisis requires that this meeting be scheduled no later than Thursday, March 19, 2020.

Sincerely,

Al Otro Lado

Asian Americans Advancing Justice Los Angeles

Carecen Los Angeles

Civil Rights Education and Enforcement Center

Disability Rights California

Esperanza Immigrant Rights Project

Human Rights First

Immigrant Defenders Law Center

Legal Aid Foundation of Los Angeles

National Lawyers Guild

Public Counsel

Public Law Center

UCI Law Immigrant Rights Clinic

UCLA Criminal Justice Program

Footnotes:

(1) See Brittny Mejia, ICE says no confirmed coronavirus among detainees, but four meet criteria for testing, LA TIMES (Mar. 10, 2020), https://www.latimes.com/california/story/2020-03-10/ice-says-no-detainees- have- coronavirus-four-being-tested; Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice- President Mike Pence, and Other Federal, State and Local Leaders from Public Health and Legal Experts in the United States (Mar. 2, 2020), available at https://law.yale.edu/sites/default/files/area/center/ghjp/documents/final_covid- 19_letter_from_public_health_and_legal_experts.pdf; OFFICE OF THE INSPECTOR GEN., MANAGEMENT ALERT – ISSUES REQUIRING ATTENTION AT THE ADELANTO ICE PROCESSING CENTER IN ADELANTO, CALIFORNIA 7 (Sept. 27, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/Mga/2018/oig-18-86-sep18.pdf; OFFICE OF THE INSPECTOR GEN., CONCERNS ABOUT ICE DETAINEE TREATMENT AND CARE AT FOUR DETENTION FACILITIES 8 (June 3, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf.

(2) Letter from Rep. Mark Takano, Member of Congress, to Matthew Albence, ICE Acting Director (Sept. 12, 2019), available at https://takano.house.gov/newsroom/press-releases/rep-takano-raises-concerns-and-requests- information-from-ice-acting-director-following-visit-to-adelanto-ice-detention-center.

(3) Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19), CDC (Mar. 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html (defining “close contact” as being within approximately six feet of a person with COVID-19 for a “prolonged period,” e.g., sitting in a healthcare waiting room); People at Risk for Serious Illness from COVID-19, CDC (last updated Mar. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html; Marc F. Stern, Washington Ass’n of Sheriffs & Pol. Chiefs, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets” (Mar. 5, 2020); Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State and Local Leaders from Public Health and Legal Experts in the United States, supra note 1.

(4) CAL. DEP’T OF JUSTICE, OFFICE OF ATTORNEY GEN., IMMIGRATION DETENTION IN CALIFORNIA 22 (Feb.2019), available at https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/immigration-detention-2019.pdf.

(5)  Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State and Local Leaders from Public Health and Legal Experts in the United States, supra note 1, at 2.

(6) MANAGEMENT ALERT – ISSUES REQUIRING ATTENTION AT THE ADELANTO ICE PROCESSING CENTER IN ADELANTO, CALIFORNIA, supra note 1, at 7.

(7) We acknowledge that ICE undertook the “remedial measure” of power washing and repainting a detainee shower, but that and similar actions fall woefully short of the remedial measures required to bring ADF’s facilities into compliance with minimum health and safety conditions. CONCERNS ABOUT ICE DETAINEE TREATMENT AND CARE AT FOUR DETENTION FACILITIES, supra note 1, at 13; Letter from Rep. Mark Takano, Member of Congress, to Matthew Albence, supra note 2 (noting that ADF employees simply repainted over moldy areas without taking any steps to mitigate future growth).

(8) CONCERNS ABOUT ICE DETAINEE TREATMENT AND CARE AT FOUR DETENTION FACILITIES, supra note 1, at 8.

(9) Featured Issue: 2019 Novel Coronavirus (COVID-19), ALIA (Mar. 12, 2020) (for DHS’ response relevant questioning from a CQ Roll Call reporter, see fifth link beneath the heading “Government Announcements and Alerts”).

(10) Amanda Holpuch, Coronavirus inevitable in prison-like US immigration centers, doctors say, THE GUARDIAN (Mar. 11, 2020) https://www.theguardian.com/world/2020/mar/11/coronavirus-outbreak-us-immigration- centers. In fact, ADF’s woefully deficient medical facilities and healthcare treatment options are the subject of a pending federal class action lawsuit. See Fraihat v. U.S. Immigration and Custom Enforcement, 5:19-cv-01546 (C.D. Cal.).

(11) Marc F. Stern, supra note 3, at 3 (recommending that jails “downsize” their inmate population by first considering whether there are “people you can release on their own recognizance? Do you have a list (who do you release if you need to downsize by 5% or 10% etc.)?” and then “Are there alternatives to arrest for certain crimes, or, in dire situations, are there crimes for which your patrol division does will not arrest?”)

Links to all signing organizations:

Al Otro Lado, Asian Americans Advancing Justice Los Angeles, Carecen Los Angeles, Civil Rights Education and Enforcement Center, Disability Rights California, Esperanza Immigrant Rights Project, Human Rights First, Immigrant Defenders Law Center, Legal Aid Foundation of Los Angeles, National Lawyers Guild, Public Counsel, Public Law Center, UCI Law Immigrant Rights Clinic, UCLA Criminal Justice Program

Immigrant Advocacy Groups File Civil Rights Complaint Against Constitutional & Disability Rights Violations

Freedom for Immigrants (FFI), Southern Poverty Law Center (SPLC), Louisiana AdvocateLaSalle ICE processing center. Low concrete building with a fence around it.s for Immigrants in Detention, and Civil Rights Education and Enforcement Center (CREEC) have filed a complaint with the Department of Homeland Security (DHS) Office of Civil Rights and Civil Liberties (CRCL) on behalf of Mr. Anderson Avisai Gutierrez, a 27-year-old Guatemalan asylum seeker detained at the LaSalle Detention Facility in Jena, Louisiana. Despite an attempt to end his own life and severe mental health disabilities, Mr. Gutierrez has been placed in solitary confinement for over eight months, where his mental health has further deteriorated.

His continued confinement is in violation of Immigration and Customs Enforcement’s (ICE) own standards, his constitutional rights, and disability law.

“Sometimes you miss taking a shower. You don’t eat, because suddenly they forget about you. They forget to wash your clothes. The light is on day and night. 24 hours a day, every day. You are locked up like an animal on exhibition, since everyone that passes can see you,” wrote Gutierrez, in a letter about his time in solitary confinement. “[The prison] is missing a lot of things for the wellness of human beings.”

 

“Throughout our weeks of visitation, Mr. Gutierrez has always been courteous and easily engaged. However, he also has appeared to me to be extremely distressed with his prolonged detention and filled with such despair. He has been in detention now for 13 months, eight of them in solitary confinement,” said Jennifer Savage, a volunteer with Louisiana Advocates for Immigrants in Detention. “He has not received the mental health follow-up he has required.”

 

“Prolonged solitary confinement is tantamount to torture,” said Sofia Casini, southern regional coordinator at Freedom for Immigrants. “ICE is well aware of the link between solitary confinement and suicide, especially for those struggling with mental health. The fact that ICE ignored every warning sign leading up to an attempt at ending his life and continued to imprison and isolate Mr. Gutierrez after is unacceptable. If he had, in fact, killed himself, it would have been tantamount to murder. This shows the lengths ICE, as well as the private companies who benefit from this system of abuse, will go to imprison rather than releasing people to their families and community who are ready to provide appropriate care.”

 

“The persistent inhumane treatment of Mr. Gutierrez is symptomatic of a system designed to strip people of their humanity,” said Maia Fleischman, law fellow at the SPLC. “ICE knowingly inflicted a severe, irreparable toll on Mr. Gutierrez’s mental health by caging him in solitary confinement for over eight months,” continued Fleischman. “The harmful effects of the denial of adequate treatment and accommodations were compounded each day ICE refused to release him to the point where he attempted to end his life. We call on ICE to release Mr. Gutierrez without further delay, so that he can be reunited with his family and have a chance to heal from this horrific experience.”

 

“Prolonged solitary confinement amounts to inhuman treatment and it’s a serious violation of Mr. Gutierrez’s rights under federal disability laws,” said Pilar Gonzalez Morales, senior staff attorney at CREEC. “Mr. Gutierrez has the right to receive accommodations for his multiple disabilities, but instead ICE and its subcontractors have chosen to place him in solitary confinement because of those disabilities. ICE’s failure to provide accommodations and to place him in a less restrictive environment are reasons enough to grant humanitarian parole so that he can receive appropriate, community-based care that he desperately needs.”

Advocates request he be granted immediate release on humanitarian parole so that he may receive appropriate medical and mental health care in an external, community-based setting, and that ICE investigate the abusive solitary confinement practices in place at these facilities.

Find a link to the full complaint below:

2020-03-13 Anderson Avisai Gutierrez_CRCL 504 COMPLAINT

 

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