UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes

v. Civil No. 20-cv-453-LM Opinion No.

US Department of Homeland Security, Acting Secretary et. al.

O R D E R

On May 18, 2020, the court held a hearing on petitioners’

emergency motion for relief regarding 8 civil immigration

detainees whom respondents intended to transfer out of Strafford

County House of Corrections (SCHOC) on May 19, 2020. Doc. no.

122, as amended by doc. no. 131. The court also heard arguments

on petitioners’ emergency request for an injunction halting

further transfers of ICE detainees into the SCHOC. Doc. no.

132.

I. Petitioners’ Requests Regarding 8 Transfers out of SCHOC

On May 14, petitioners submitted an emergency motion (doc. no.

122) seeking the following injunctive relief:

1) require respondents to disclose specific information prior to transferring ICE detainees from SCHOC; and

2) prevent ICE from transferring any ICE detainees to any other facility for non-removal purposes; or

3) give each detainee a bail hearing prior to transfer. On May 16, after a detainee at SCHOC tested positive for

COVID-19, the first confirmed case for an inmate at the

facility, petitioners filed two additional motions. First,

petitioners filed a motion seeking discovery about the detainee

who tested positive and SCHOC’s contact tracing, testing, and

quarantine capacities. Doc. no. 133. Prior to the May 18

hearing, respondents rendered that motion moot by disclosing the

requested information.

Second, petitioners filed an addendum to their request for

emergency relief as to the 8 detainees being transferred out of

SCHOC. Doc. no. 131. In light of the positive COVID-19 test,

petitioners withdrew their request that ICE not transfer any

detainees to other facilities for non-removal purposes because

some detainees may prefer to be transferred out of the facility.

Petitioners added requests for injunctive relief and requested

the following order:

A. When ICE intends to transfer a class member for non-removal purposes, ICE shall provide the following information to Petitioners’ counsel 72 hours prior to transfer to ensure that the class member’s rights are protected: (i) where ICE intends to transfer the detainee, (ii) whether that facility has confirmed COVID-19 cases among staff or detainees, (iii) whether the transferred individual will be housed in single or congregate cells in that facility, (iv) the percentage capacity of the facility and whether it is significantly less than the current capacity at the SCDOC, and (v) whether the detainee has any indication in his or her entire ICE medical file reflecting medical vulnerability according to the Court’s May 4,

2 2020 criteria (see Docket No. 52) in determining medical vulnerability and, thus, entitlement to bail hearings; and

B. For any detainee who ICE intends to transfer for non-removal reasons, any such detainee shall be provided an immediate bail hearing before this Court prior to transfer;

C. ICE should not transfer any detainee for any reason before that detainee receives a test for COVID-19 infection and provides the negative outcome of the test to the Court, even where bail has been denied for the detainee. If an individual declines to be tested, then the individual may be moved so long as it is compliant with ICE internal protocols; and

D. Any detainee released by ICE in its discretion or by this Court on bail shall be given an immediate test for COVID-19 at ICE’s expense. If there is a positive test, the detainee should be immediately transported to a nearby hospital where the detainee can receive appropriate medical care at ICE’s expense.

Paragraph A

With respect to petitioners’ request in paragraph A,

respondents agreed during the hearing that at least 48 hours

before a detainee from SCHOC is transferred to another facility,

they will inform petitioners:

1) Which field office and, if known, which facility the detainee will be transferred to;

2) Whether any facility under the authority or within the jurisdiction of the field office has any confirmed COVID- 19 cases among those who work or are detained at the facility and, if so, which facility and how many COVID-19 positive individuals are present;

3) The percentage capacity of the transferee facility at the time of transfer—or facilities operated by the field

3 office at the time of transfer—and how that percentage compares to the capacity at SCHOC at the time of transfer; and

4) Whether there is any indication in a detainee’s medical record that the detainee is medically vulnerable.

Respondents are unable to provide some of the additional

information that petitioners requested. For example,

respondents cannot inform petitioners whether a transferred

detainee will be housed in a single or congregate cell because

that information is not known until a detainee reaches the

receiving facility. Respondents also assert that ICE does not

maintain any sort of cumulative medical records for detainees in

its custody. Surprisingly, ICE does not transfer medical

records from one facility to another when detainees are

transferred. When a detainee is transferred into SCHOC, while

this case is pending, the court encourages respondents to ask

the sending facility to transfer any detainee medical records

that are in the custody or control of ICE or the sending

facility.

Although respondents argued that petitioners could discover

COVID-positive data from ICE’s “confirmed cases” coronavirus

website, see https://www.ice.gov/coronavirus, petitioners

asserted that the website is not up to date and only includes

data about ICE employees. Thus, the website does not include

information about employees that work at a facility like SCHOC

4 because those employees work for Strafford County as opposed to

ICE. Indeed, as of May 19, 4 days after a medical records

administrator at SCHOC tested positive for COVID-19, and three

days after a detainee tested positive, SCHOC was still not

listed on the ICE website as a facility with a confirmed case of

COVID-19. On May 20, the ICE website stated one detainee at

SCHOC had tested positive for COVID-19 but the website did not

indicate that a staff member who works at SCHOC had also tested

positive. Counsel for respondents agreed to inquire whether

additional information may be available about the presence of

COVID-19 at receiving facilities from other sources. If

additional information is available, respondents agreed to

disclose this information to petitioners.

Paragraphs B & D

In light of respondents’ agreement to make the above

information available, petitioners withdrew their request in

paragraph B that all detainees receive bail hearings prior to

transfer. Petitioners also withdrew the request in paragraph D

that all detainees released from SCHOC by ICE or the Court be

tested for COVID-19. Petitioners will renew these requests on a

case-by-case basis as deemed necessary.

5 Paragraph C

This leaves petitioners’ request that ICE:

[N]ot transfer any detainee for any reason before that detainee receives a test for COVID-19 infection and provides the negative outcome of the test to the Court, even where bail has been denied for the detainee. If an individual declines to be tested, then the individual may be moved so long as it is compliant with ICE internal protocols.

Doc. no. 131 at 5. At the time of the hearing, respondents were

reluctant to agree to test all detainees prior to transfer

because tests might not be available and there was a possibility

of false negatives. Counsel for respondents agreed, however, to

inquire with SCHOC and ICE about the possibility of testing

detainees before ICE transfers them to a new facility.

Respondents agreed to update the court and petitioners regarding

that issue.

The court appreciates that, up until two weeks ago, the

limited number of COVID tests in New Hampshire may have

restricted SCHOC’s ability to test incoming or outgoing

detainees. However, in the last two weeks, more COVID-19 tests

are available and anyone experiencing symptoms or anyone who

falls into a higher risk category due to age, medical condition,

or other risk factor—such as health care workers or long-term

care facility workers—may also be tested. See

6 https://www.wmur.com/article/get-coronavirus-test-new-

hampshire/32479184 (last accessed May 19, 2020 at 4PM).

As the court noted in the May 14, 2020 order, living in a

congregate setting such as SCHOC places detainees at a higher

risk of being infected with COVID-19. See doc. no. 123 at 9.

Medical experts from the Department of Homeland Security have

warned of a “tinderbox scenario” in ICE detention centers where

the virus could spread rapidly once introduced. See doc. no.

5-2 at 4-6; see also doc. no. 5-3 at 4. Just a few days ago, on

Saturday, May 16, 2020, an ICE detainee coming from a facility

with known cases of COVID-19 was not tested prior to being

transferred to SCHOC and now has become the first detainee at

SCHOC to test positive for COVID-19.

The court appreciates that it may not be possible to test

everyone in New Hampshire for COVID-19 at this time. However,

SCHOC has three known cases of COVID-19 within the facility (two

detainees and one employee) and it is unknown at this time

whether additional individuals within the facility may also have

COVID-19 because there has not been widespread testing within

the facility. Transferring detainees without first confirming

they are COVID-negative is unnecessarily risky to the detainee,

those transferred alongside the detainee, and the receiving

facility.

7 In light of these public health risks, the court is hopeful

that respondents will reassess the situation and decide to test

SCHOC detainees before transferring them out of SCHOC and into a

new facility. However, this decision is one best left to

respondents. The court is not persuaded it has the authority to

order that ICE perform these tests.

II. Request to Halt Transfers into the SCHOC

In response to the detainee testing positive for COVID-19,

petitioners filed an emergency motion asking the court to stop

respondents from transferring ICE detainees into SCHOC until the

court resolves petitioners’ pending motion seeking the same

relief. Doc. nos. 132 and 7. At the hearing, petitioners

modified this request slightly and no longer seek to exclude

short-term “airlift” detainees from entering the facility.1

Petitioners argue this relief is necessary in order to prevent

detainees with COVID-19 from entering SCHOC and endangering

class members. Petitioners further argue that it is necessary

to stop new detainees from entering SCHOC in order to improve

the facility’s ability to implement social distancing by

1“Airlift” detainees are only in the facility for 4 or 5 days and spend their entire stay in quarantine. See doc. no. 123 at 21.

8 decreasing—or at least not increasing—the population at SCHOC.

Doc. no. 7.

The court recognizes that a limited number of courts have

issued preliminary injunctions enjoining ICE from transferring

detainees into detention facilities. See, e.g., Savino v.

Souza, No. CV 20-10617-WGY,

, at *11 (D. Mass.

May 12, 2020). But see Roman et al. v. Wolf et al., 20-00768

TJH (C.D. Cal. April 23, 2020), Preliminary Injunction ¶ 1

(“Adelanto shall not accept any new detainees”), rev’d

, at *1 (9th Cir. May 5, 2020) (staying this portion of

the preliminary injunction).

At this point, on this record, petitioners have not

persuaded the court either that it has the authority to place a

judicial blockade on the doors of SCHOC or that such relief is

necessary. Thus, the court denies without prejudice

petitioner’s emergency request for a preliminary injunction

halting transfers into SCHOC.

CONCLUSION

For the reasons stated above, and on the record during the

May 18, 2020 hearing, the court grants in part and denies in

part petitioners’ motion for relief with regard to the 8

detainees to be transferred out of SCHOC. Doc. no. 122. The

9 court denies petitioners’ request for a preliminary injunction

halting detainee transfers into SCHOC without prejudice. Doc.

no. 132. Petitioners’ request for discovery is moot. Doc. no.

133.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge May 21, 2020

cc: Counsel of Record.

10