Emails Reveal ICE’s Refusal to Test People in Their Care – Judge Orders ICE to Provide Testing

After ICE had failed to provide COVID testing to immigrant detainees, on Thursday, a federal judge granted extraordinary relief — weekly rapid testing, no new intakes, and a dorm for COVID-positive detainees — for all immigrants detained at Mesa Verde Detention Facility in the wake of a COVID-19 outbreak that hospitalized two detainees and infected at least 7 others.

Federal District Court Judge Vince Chhabria, in his order, affirmed that “The documentary evidence shows that the defendants have avoided widespread testing of staff and detainees at the facility, not for lack of tests, but for fear that positive test results would require them to implement safety measures that they apparently felt were not worth the trouble.”

There are at least 8 detainees currently infected with COVID-19 at Mesa Verde as well as 14 staff infected in recent weeks. Two detainees have been hospitalized: one elderly and medically vulnerable man was taken to the emergency room and released from ICE custody after a COVID-positive diagnosis on Saturday.

“ICE continues to demonstrate its failure to act to prevent a COVID crisis, which has devastating consequences to those in its custody,” said San Francisco’s Public Defender Manohar Raju. “This is particularly unconscionable as Mesa Verde is currently facing an entirely preventable COVID outbreak.”

All detainees at the facility are housed in dorms of more than 20 people with limited capacity for social distancing. In recent days, because of a shortage of space at the facility given the COVID outbreak, individuals have been detained in the bathrooms of intake cells. And now, at least half of the detainees at the facility are on lockdown because of COVID infections confirmed in two of the four dorms.

Incriminating e-mails between ICE and GEO Group, Inc., the private corporation that manages the detention facility, obtained through the lawsuit, reveal that the two parties rejected a plan to universally test detained people because they would be unable to adequately isolate those who tested positive.

In a May 21 email, ICE Assistant Field Office Director Alexander Pham recorded that ICE’s San Francisco management team decided: “due to constraints that the IHSC guidelines would put on our housing resources we will be limiting the scope of testing as much as possible.”

After ICE Headquarters proposed identifying Mesa Verde as one of four pilot sites nationwide that would implement universal testing, ICE’s San Francisco Field Office objected, with Field Office Director David Jennings expressing “some concerns about being a test place – in short we have no place to cohort anyone who refuses, is positive, etc.”

“These emails show a staggering disregard for human life on the part of ICE and GEO,” said Bree Bernwanger, senior staff attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. “ICE chose to risk the outbreak that is now gripping Mesa Verde.”

Another e-mail revealed that ICE refused to test contract staff due to fear that positive tests could force them to change the manner in which they detain immigrants. GEO’s Mesa Verde Warden Nathan Allen wrote that ICE’s Assistant Field Office Director “mentioned he would rather not have staff testing as they may also impact ERO functions, i.e., an asymptomatic person testing positive would require possible dorm cohorts and detainee testing protocols.”

“We reached this dire point because ICE failed to take measures to prepare for an outbreak, even when the signs showed one was imminent,” said Sean Riordan, senior staff attorney at ACLU of Northern California. “This order is a step towards a system that will protect the people detained at Mesa Verde.”

“Now that the outbreak has arrived, and in the face of ICE’s callous disregard for detainees in its custody, today’s court order provides essential safeguards necessary to protect the health and safety of detainees housed at Mesa Verde and residents of the surrounding community,” said Martin Schenker, a partner at Cooley LLP.

“What these last few weeks have revealed without a shadow of a doubt is that a government agency, and those with whom they contract, are deliberately indifferent with respect to the health and safety of the human beings they incarcerate. It’s infuriating, heart wrenching and, quite frankly, frightening,” said attorney Judah Lakin of Lakin & Wille LLP.

A coalition of legal organizations is representing the plaintiffs, including the San Francisco Public Defender’s Office, the ACLU Foundations of Northern California and Southern California, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF), Lakin & Wille LLP, and Cooley LLP.

E-mails between ICE and GEO Group can be viewed here.

Read the order here.

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