SAN DIEGO — A federal judge ordered Immigration and Customs Enforcement to review for release a list of newly identified detainees at Otay Mesa Detention Center who would be at high risk for serious symptoms if they get COVID-19.
Judge Dana Sabraw granted the American Civil Liberties Union’s request to create a subclass of people at high risk under the pandemic, which has spread widely within the facility. The judge made his decision after learning that the facility’s warden had undercounted the number of people in that category in his initial declaration for the case.
“That information is significant,” Sabraw told attorneys during a telephonic hearing Thursday. “It does change measurably the underlying facts and whether or not the petitioners are entitled to relief.”
ICE officials said in response Thursday: “We are reviewing and cannot comment on litigation.”
CoreCivic, the private prison company that runs the facility, did not immediately respond to request for comment.
In Warden Christopher LaRose’s initial declaration to the court, he said that eight ICE detainees currently at the facility were considered to be high risk from the virus. In a supplemental filing submitted by LaRose on Wednesday, the warden said he had learned that there are actually somewhere between 51 and 69 detainees still inside who are in that category.
The other high-risk detainees were discovered, LaRose’s attorney Daniel Struck said, when ICE’s medical team was working through a review of cases at the facility under orders from a judge in another lawsuit out of Los Angeles.
“We wanted the court and counsel to be aware that that information was not accurate,” Struck said, apologizing to the judge for having incorrect numbers in the warden’s declaration. He said that as soon as the warden became aware of the issue, he worked with attorneys to correct it.
Monika Langarica, an attorney with the ACLU of San Diego and Imperial Counties, told the judge that the error calls into question whether people in charge of the facility have accurate information about the people they are responsible for taking care of.
Left to their own devices, without the intervention of the federal judge in Los Angeles, Langarica said, ICE would likely not have done the review that found these additional detainees.
According to facility documents obtained by The San Diego Union-Tribune, as of Wednesday afternoon there were at least 163 people in custody at the facility who had tested positive for the virus. Within that group, 100 are detainees in ICE custody on civil immigration violations and 63 are inmates charged with federal crimes in U.S. Marshals Service custody.
Dr. Sheri Malakhova, acting clinical director at Otay Mesa, said during the hearing Thursday morning that 162 people had tested positive at the facility.
One man in ICE custody is hospitalized and on a ventilator.
Malakhova said that the man has diabetes and moved onto the ventilator this week.
Langarica said that because of his condition, the man was part of the group that the lawsuit was trying to help in creating the high-risk subclass that Sabraw certified on Thursday.
Sabraw said he would issue a written order shortly and urged ICE to act immediately to release as many from the list as it could while weighing factors that include public safety. He said the subclass would be for people ages 60 and up and based on Centers for Disease Control and Prevention guidance for whom is at high risk during the pandemic.
Sabraw said he expected most of the people in that subclass to be released.
“At this point it’s very important that ICE turn its attention to these identified individuals and make those release determinations as quickly as possible,” Sabraw said.
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