Massachusetts ICE Detainees Must Be Tested for Virus, Court Says

Immigration and Customs Enforcement must offer testing for the coronavirus for civil immigration detainees at a facility in Massachusetts and may not house any more detainees there because of Eighth Amendment concerns, a federal judge ruled.

A group of ICE detainees in Miami also received Covid-19-related relief from a federal judge in Florida earlier this month. The court there ordered ICE to review whether 30 civil immigration detainees are eligible for house arrest because it’s impossible for the detainees at those facilities to practice social distancing.

Some testing has already taken place at the Bristol County House of Correction in Massachusetts, but “there remain critical safety gaps” that place the detainees at imminent risk of irreparable harm and warrant a preliminary injunction, Judge William G. Young said on Tuesday for the U.S. District Court for the District of Massachusetts.

The court orally granted the detainees’ motion for a preliminary injunction at a hearing on May 7. Tuesday’s opinion details the court’s reasoning.

ICE hasn’t conducted widespread testing and hasn’t followed through with additional contact tracing, the court said. “Of particular concern is the contradictory evidence in the record regarding monitoring of those detainees who are especially vulnerable to Covid-19,” it said.

That’s especially problematic when combined with ICE’s “blanket policy” of denying all applications for release on bail or house arrest, the court said.

Older adults and individuals with underlying medical conditions like heart conditions, chronic lung diseases, and those with diabetes, have been identified by the Centers for Disease Control as being at a higher risk of contracting the virus and suffering complications.

“Keeping individuals confined closely together in the presence of a potentially lethal virus, while neither knowing who is carrying it nor taking effective measures to find out, likely displays deliberate indifference to a substantial risk of serious harm” in violation of the Eighth Amendment, the court said.

The lawsuit was certified as a class action in April, comprised of 148 Bristol County civil immigration detainees. The court has already expedited the review of the detainees’ bail applications and ordered a third of them released on bail, which has reduced the facility’s population density, according to the opinion.

The Lawyers Committee for Civil Rights and Economic Justice and Yale Law School professor Michael J. Wishnie represent the detainees.

The DOJ represents ICE.

The case is Savino v. Souza, D. Mass., No. 20-cv-10617, 5/12/20.