14 immigration detainees have been released, including 7 after bail hearings, as a result of the lawsuit
As of this morning, May 15, an employee at Strafford County has tested positive for COVID-19
CONCORD, N.H. – Following a federal class action lawsuit, a federal judge yesterday issued a written decision ruling that Immigration and Customs Enforcement (ICE) civil immigration detainees at Strafford County Department of Corrections are entitled to bail hearings if they are medically vulnerable. As of this morning, May 15, it was confirmed that one staff member has now tested positive for COVID-19—underscoring the critical necessity of this lawsuit.
Since May 4, 2020, the Court has conducted 11 bail hearings for medically vulnerable immigration detainees, and seven have been released on bail. Additionally, since the filing of this class action lawsuit on April 17, 2020, ICE has voluntarily released an additional 7 detainees without the need for a bail hearing. In total, 14 detainees have been released as a result of this lawsuit. For immigration detainees who are not medically vulnerable, the court is still considering whether they are entitled to bail hearings and will hear additional evidence on May 29, 2020. The written order can be found here.
“I have been in detention for about 21 months after applying for asylum at the border,” said Ernest, an asylum seeker from Cameroon, who was released as a result of this lawsuit following a May 7 bail hearing. “During this time in detention, my health deteriorated very badly. When I was transferred to New Hampshire after several transfers in Arizona, Alabama, and other places, I started to be concerned about the coronavirus and detention. I thank the Court and everyone including lawyers for my release. It is wonderful to now be finally free for the first time in the United States.”
In addressing whether ICE failed to take reasonable measures to prevent an outbreak at Strafford, the court decision states (with “respondents” referring to ICE): “As of May 1, almost a month after the April 4 ERO e-mail, respondents had yet to identify any high-risk detainees …. Respondents have put forward no evidence or explanation for this failure to identify obvious high-risk cases. And it has been demonstrated that this review and identification can be completed expeditiously …. The court is deeply troubled by respondents’ failure to identify high-risk detainees until forced to do so by this lawsuit.”
The ACLU of New Hampshire and national ACLU, together with law firms Nixon Peabody LLP, Whatley Kallas LLP, Shaheen & Gordon PA, Newman Law Office PLLC, and Hinckley Allen & Snyder LLP brought this class action lawsuit on April 17, 2020. Medical authorities have emphatically stated that maintaining a social distance of six feet is crucial to preventing the spread of COVID-19—something that is impossible at the Dover facility. As of May 14, 2020, 965 immigration detainees have tested positive for COVID-19 across the United States.
“We are pleased with the Court’s decision, and will continue on behalf of all civil immigration detainees at the facility. The continued failure by ICE to release all detainees absent court intervention, especially now with a positive case at the facility, puts detainees, staff, and the broader community at grave risk of death or serious injury,” said SangYeob Kim, immigration staff attorney at the ACLU of New Hampshire. “The virus is already spreading through correctional facilities across the country with devastating consequences. We are continuing to demand immediate action to stem this outbreak and save lives.”
“Because the plaintiffs and other proposed class members are not being detained pursuant to a criminal conviction, safer alternatives are available, and the Court has recognized this by releasing 7 detainees after bail hearings,” said Nathan Warecki, an attorney with Nixon Peabody in Manchester who specializes in complex immigration litigation. “ICE has a long-standing practice of releasing detainees for humanitarian reasons, and regularly uses options like GPS and electronic monitoring to maintain custody and control over non-citizens.”
The court decision also states: “…once the virus is inside the jail, not only are detainees and inmates at great risk due to the nature of the virus and the close quarters of the jail, but the community of Dover could be at risk should large numbers of detainees or inmates need hospital care.”
Civil Rights in a Pandemic
Viruses like COVID-19 do not distinguish between economic, immigration, or incarceration status—and so all people must be protected. The ACLU of New Hampshire is urging jails and prisons in the Granite State to release people where possible, and is asking ICE to halt immigration enforcement operations and, through a class action federal lawsuit, seeking the release of all ICE detainees currently at Strafford County Department of Corrections. View the latest updates on what the ACLU of New Hampshire is doing to protect civil rights during this pandemic at aclu-nh.org.