robert s. brewer jr. united states attorney assistant u.s ... · b. proposed subclass of medically...
TRANSCRIPT
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ROBERT S. BREWER JR. United States Attorney KATHERINE L. PARKER, SBN 222629 Chief, Civil Division SAMUEL W. BETTWY, SBN 94918 Assistant U.S. Attorney REBECCA G. CHURCH, SBN 259652 Assistant U.S. Attorney BETSEY A. BOUTELLE, SBN 299754 Assistant U.S. Attorney Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 619-546-9634/7125/7721/8764 / 619-546-7751 (fax)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA ADRIAN RODRIGUEZ ALCANTARA, et al., Plaintiffs-Petitioners, v. GREGORY J. ARCHAMBEAULT, San Diego Filed Office Director, ICE; et al., Defendants-Respondents.
Case No. 20cv0756 DMS AHG DATE: July 17, 2020 TIME: 1:30 p.m. CTRM: 13A Hon. Dana M. Sabraw
RESPONDENTS’ RESPONSE
TO MOTION TO CERTIFY CLASS1
1 Petitioners seek to revive the motion to certify that is located at ECF No. 1-3. [See ECF No. 83-1 at 15:4-17.] Respondents therefore incorporate their response, which is located at ECF No. 27.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
I. SUMMARY OF ARGUMENT 1
II. STATEMENT OF FACTS 3
III. ARGUMENT 4
A. PETITIONER’S BURDEN OF PROOF 4
B. PROPOSED SUBCLASS OF MEDICALLY VULNERABLE AT IRDF 6
Lack of Numerosity 6
Lack of Typicality and Adequacy 8
Changed circumstances in Fraihat preclude certification of a subclass of
medically vulnerable detainees 8
A. PROPOSED FACILITY-WIDE CLASS 10
Lack of Commonality 10
Failure to satisfy Rule 23(b) 15
IV. CONCLUSION 16
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TABLE OF AUTHORITIES
Cases
Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684 (9th Cir. 2007)............................... 9
Arizmendi de Paz v. Wolf, No. 20-CV-955-WQH-BGS,
2020 WL 3469372 (S.D. Cal. June 25, 2020) ................................................... 11
Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2015) ............................. 12
Chowning v. Kohl’s Dep’t Stores, Inc., CV1508673RGKSPX,
2016 WL 7655752 (C.D. Cal. Mar. 2, 2016). ................................................... 10
Clardy v. Pinnacle Foods Group, LLC, 16-CV-04385-JST,
2017 WL 57310 (N.D. Cal. Jan. 5, 2017) .......................................................... 9
Dawson v. Asher, No. C20-0409JLR-MAT,
2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) ................................................ 12
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)....................... 12
E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395 (1977) ................................ 8
Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011). ..................................... 5
Fraihat v. ICE, Case No. 19-1546-JGB (SHKx),
2020 WL 1932570 (C.D. Cal. April 20, 2020) .......................................... 4, 8, 12
Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. 2018) ........................................... 12
Habibi v. Barr, No. 20-cv-00618-BAS (RBB),
2020 WL 1864642 (S.D. Cal. Apr. 14, 2020) ................................................... 12
In re Jose Nectale del Cil-Amaya, 2009 WL 3713292 (BIA Oct. 27, 2009)................... 14
Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014) ......................................... 10
Kydyrali v. Wolf, No. 20-cv-00539-AJB (AGS) (S.D. Cal. Apr. 8, 2020)...................... 12
Kydyrali v. Wolf, No. 20-cv-00539-AJB (AGS) (S.D. Cal. May 13, 2020) .................... 12
Lopez-Marroquin v. Barr, No. 20-cv-682-LAB (MDD),
2020 WL 1905341 (S.D. Cal. Apr. 17, 2020) ................................................... 12
Martin v. Sysco Corporation, 325 F.R.D. 343 (E.D. Cal. 2018) ..................................... 5
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Moreno v. Castlerock Farming & Transp., Inc., CIV-F-12-0556 AWI,
2013 WL 1326496 (E.D. Cal. Mar. 29, 2013) .................................................... 9
Neal v. Rios, No. 1:10CV0021-6LJOSMSHC,
2010 WL 1131646 (E.D. Cal. Mar. 24, 2010) .................................................... 5
NEI Contracting & Eng'g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 532
(9th Cir. 2019). .............................................................................................. 8
Nken v. Holder, 556 U.S. 418 (2009) ....................................................................... 15
O’Shea v. Littleton, 414 U.S. 488 (1974).................................................................... 8
Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014).......................................................... 10
Quijada v. Wolf, No. 20-cv-0744-WQH (AGS) (S.D. Cal. May 4, 2020) ...................... 11
Richey v. Matanuska-Susitna Borough, No. 14-CV-00170 JWS,
2015 WL 1542546 (D. Alaska Apr. 7, 2015) ................................................... 10
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ..................................................... 5
Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668 (9th Cir. 1975) .............................. 5
Sosna v. Iowa, 419 U.S. 393 (1975)........................................................................... 8
Ventura v. Archambeault, No. 20-cv-00963-GPC-AGS............................................ 4, 7
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) ...................................... 4, 11
Zepeda Rivas v. Jennings, -- F. Supp. 3d --, No. 20-cv-02731-VC,
2020 WL 2059848 (N.D. Cal. Apr. 29, 2020) .................................................... 9
Statutes
Fed. R. Civ. P. 23(a)................................................................................................ 5
Fed. R. Civ. P. 23(b)(2) ........................................................................................... 6
8 U.S.C. § 1158 .................................................................................................... 13
8 U.S.C. § 1159(b) ................................................................................................ 13
8 U.S.C. § 1231(b)(3)(B) ....................................................................................... 13
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Regulations
8 C.F.R. § 208.30(e)(2)............................................................................................ 5
8 C.F.R. § 1208.16(c) ............................................................................................ 13
Board of Immigration Appeal (BIA) decisions
In re Guerra, 24 I&N Dec. 37 (BIA 2006) ............................................................... 14
Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020) ............................................... 13, 14
Other Authorities
Anita Chabria, Emily Baumgaertner, Stephanie Lai, Taryn Luna, ‘We’re surging again.’
Doctors, nurses angry as coronavirus strains California hospitals, L.A. TIMES, June
30, 2020, https://www.latimes.com/california/story/2020-06-30/california-returns-
to-closures-as-coronavirus-hospitalizations-surge............................................... 1
Exec. Office for Immigration Review, Myths vs Facts about Immigration Proceedings,
May 2019, available at https://www.justice.gov/eoir/page/file/1161001/download14
Julie Bosman and Mitch Smith, As Coronavirus Cases Spike, California's Early Gains
Are Coming Undone, NPR, June 29, 2020,
https://www.npr.org/2020/06/29/884551370/as-coronavirus-cases-spike-californias-
early-gains-are-coming-undone ....................................................................... 1
Opening Up America Again, see https://www.whitehouse.gov/openingamerica/ ............. 1
U.S. Dep’t of Justice, Statistics Yearbook FY 2018, available at
https://www.justice.gov/eoir/file/1198896/download ........................................ 14
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I
SUMMARY OF ARGUMENT
Petitioners seek an arbitrary reduction of the population at IRDF to an unspecified
level, but the sole claim1 of their petition/complaint has been satisfied. IRDF has released
virtually all medically vulnerable detainees, it has reduced occupancy to 36.57%, and it has
implemented rigorous screening, quarantining, isolating, hygiene, sanitation, and safe
procedures for meals and sick call. The low number of positives at IRDF (two, both of
whom have recovered) is proof that its actions are working. With both a low occupancy
percentage and good practices at IRDF, the controlled congregate setting may actually
provide greater safety to a detainee than release into the community amidst the phased
Opening Up America Again, see https://www.whitehouse.gov/openingamerica/, especially
given what is being widely reported about relaxed practices around the country. See, e.g.,
Julie Bosman and Mitch Smith, As Coronavirus Cases Spike, California’s Early Gains Are
Coming Undone, NPR, June 29, 2020, https://www.npr.org/2020/06/29/884551370/as-
coronavirus-cases-spike-californias-early-gains-are-coming-undone (last visited June 30,
2020); Anita Chabria, Emily Baumgaertner, Stephanie Lai, Taryn Luna, ‘We’re surging
again.’ Doctors, nurses angry as coronavirus strains California hospitals, L.A. TIMES, June
30, 2020, https://www.latimes.com/california/story/2020-06-30/california-returns-to-
closures-as-coronavirus-hospitalizations-surge (last visited June 30, 2020).
Knowing that the medically vulnerable detainees have already been released from
IRDF, Petitioners are overreaching, asking this Court to exercise sweeping discretion to
release detainees after summarily certifying the entire population at IRDF, starting with
certain asylum applicants. Apart from the fact that there are no asylum applicants whose
cases have been suspended [Valenzuela Decl., paras. 13-14], Petitioners do not even attempt
1 See ECF No. 1, para. 167 (single claim that detainees must be protected from “an unreasonable risk of serious harm, including severe illness and death in violation of their due process rights.”), 42 (prayer for relief); ECF No. 1-3 at 7 (“conditions that…place them at imminent and unreasonable risk of serious illness or death.”).
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to certify this new, de facto subclass of asylum applicants, to amend their petition with their
new claim and allegations about asylum applicants, or to explain the correlation between
alleged prolonged detention and their sole claim that IRDF is subjecting detainees to an
unreasonable risk of serious illness or death from COVID-19. By attempting to use this case
as a vehicle to pursue unrelated claims and causes,2 Petitioners demonstrate that they no
longer have a genuine concern for resolving the claim in their petition.
At any rate, Petitioners’ assertion that asylum applicants do not pose a danger to the
community is not accurate, given the pandemic, which is the impetus of this case. As
evidenced by their own putative class representative who has absconded [see Valenzuela
Decl., para. 25], asylum applicants generally pose a very high risk of flight, thereby posing
a health risk both to themselves and to the public.
This Court cannot reach Petitioners’ motion for preliminary injunction until a class
is certified, and Petitioners have not and cannot satisfy their burden of satisfying the
elements of Rule 23. The proposed subclass of medically vulnerable detainees is not viable,
because IRDF has released all CDC-defined medically vulnerable detainees, including
those over sixty years old, except for approximately eight medically vulnerable detainees
who pose a danger to the community. In addition, the sole putative class representative,
Petitioner Calderon, is not medically vulnerable as defined by the CDC, and she has
absconded.
2 For example, in support of their incorporated motion, Petitioners have submitted the declaration of Brendan Cassidy [ECF No. 1-3 at 19; ECF No. 1-13 at 2], a member of Otay Mesa Detention Center Resistance, whose vision is “[s]hutting down the Otay Mesa Detention Center.” https://www.otaymesadetentionresistance.org/about. See also ACLU, End the Illegal Detention of Asylum Seekers, https://action.aclu.org/petition/end-illegal-detention-asylum-seekers (“The detention of asylum seekers is … illegal.”); ACLU, Free Asylum Seekers from Incarceration, https://action.aclu.org/teamaclu/campaign/free-
asylum-seekers-from-incarceration (referring to the “work the ACLU is doing to stop immigrant incarceration”); ACLU, Border Litigation Project, Intake Questionnaire, https://www.aclusandiego.org/wp-content/uploads/2016/02/2014-09-12-BLP-Intake-Form-FINAL-2.pdf (“[W]e are considering litigation for the purpose of changing U.S. Border Patrol’s policies and practices.”).
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The proposed facility-wide class cannot satisfy the element of commonality, because
Petitioners’ claim concerns only the risk of serious illness or death from COVID-19, and
virtually all CDC-defined medically vulnerable detainees have been released. Petitioners
have not explained how a release of non-medically vulnerable detainees relates to their
claim. Any further reduction of the population at IRDF would entail factors unrelated to
Petitioners’ claim and/or would require individualized determinations. There is therefore no
justification for certifying a facility-wide class.
II
STATEMENT OF FACTS
Petitioner Calderon is a putative representative of both the proposed medically
vulnerable subclass and the proposed facility-wide class. She is a 35-year-old native and
citizen of Honduras who was released from IRDF on April 24, 2020.3 She was released
without bond restriction, subject to reporting requirements and alternatives to detention
(ATD) (GPS monitoring). [Valenzuela Decl., para. 25.] She was not released for medical
reasons, and she does not falls within CDC’s definition of medically vulnerable to serious
illness or death. [Dr. Martinez Decl., para. 24; Calderon Medical Records.]4 She was
released in the normal course of custody review. [ECF No. 23-1 at 1, 4, 7-8 (TRO Motion
Response).]
On May 15, 2020, Petitioner Calderon’s ankle monitor stopped transmitting, and she
failed to report to the ICE field office in San Antonio, Texas, on June 9, 2020, as was a
condition of her release. [Valenzuela Decl., para. 25.]
Petitioner Mary Doe is a putative class representative of the proposed facility-wide
class, not of the medically-vulnerable subclass. She is a 19-year-old native and citizen of
3 For a summary of Petitioner Calderon’s removal proceedings, see ECF No. 23 at 10 (hereinafter TRO Motion Response).
4 Petitioner Calderon’s medical records are being lodged separately under proposed seal.
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Guatemala who was released from IRDF on April 24, 2020. [ECF No. 1, para. 36; ECF No.
23-1 at 15-16 (TRO Response).] 5
IRDF has released all CDC-defined medically vulnerable detainees, including those
over sixty years old, except for approximately eight medically vulnerable detainees who
pose a danger to the community. [Valenzuela Decl., para. 23.] IRDF has also released
medically vulnerable detainees as defined in Fraihat v. ICE, Case No. 19-1546-JGB
(SHKx), 2020 WL 1932570 (C.D. Cal. April 20, 2020). [Id.] Of those released, two have
absconded (in addition to Petitioner Calderon). [Valenzuela Decl., para. 26.]
Regarding conditions at IRDF, Respondents incorporate the response of the IRDF
Facility Administrator to Petitioners’ motion for a preliminary injunction, including the
accompanying declarations of Sixto Marrero, the IRDF Facility Administrator, and of Dr.
Julio Martinez, the treating physician at IRDF. [See ECF Nos. 95-1 through 95-3
(hereinafter 7/2/20 Marrero Decl. and Dr. Martinez Decl.); see also ECF No. 88-1
(hereinafter 6/9/20 Marrero Decl.).]
III
ARGUMENT
A. PETITIONERS’ BURDEN OF PROOF
Petitioners’ burden to satisfy the requirements for obtaining certification of a class or
subclass at IRDF is extraordinarily high, but they have, instead, simply incorporated their
previous motion,6 which was filed over two months ago, and they have updated it only with
inaccurate allegations about conditions at IRDF. “Rule 23 does not set forth a mere pleading
standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, “[a] party
seeking class certification must affirmatively demonstrate his compliance with the Rule—
5 For a summary of Petitioner Doe’s removal proceedings, see TRO Motion Response
at 10. 6 Respondents incorporate by reference their response in opposition. [ECF No. 27.]
Petitioners have not filed a properly noticed motion [ECF No. 83], because there is no mention of a motion to certify class. See L.R. 7.1.e. (“a written notice of a matter requiring the court’s ruling is necessary”).
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that is, he must be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Id. (emphasis in original). The deciding court must
conduct a “rigorous analysis” and conclude that the movant has established each Rule 23
element. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). Furthermore,
“[c]lass action suits brought … in a habeas corpus action are ordinarily disfavored.” Neal
v. Rios, No. 1:10CV0021-6LJOSMSHC, 2010 WL 1131646, at *1 (E.D. Cal. Mar. 24,
2010) (citing Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010)).
Rule 23(a) consists of four elements—numerosity, commonality, typicality, and
adequacy. Fed. R. Civ. P. 23(a)(1)-(4). Since Petitioners seek injunctive relief (immediate
release), they must also satisfy Rule 23(b)(2), which requires proof that Respondents “acted
or refused to act on grounds that generally apply to the class.” Fed. R. Civ. P. 23(b)(2).
Failure to meet “any one of Rule 23’s requirements destroys the alleged class action.”
Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975).
Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule
23(a), the party seeking certification must demonstrate, first, that
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a).
Petitioners have the burden of demonstrating the elements of Rule 23 by a
preponderance of the evidence. See, e.g., Martin v. Sysco Corporation, 325 F.R.D. 343, 354
(E.D. Cal. 2018) (“While Rule 23 does not specifically address the burden of proof to be
applied, courts routinely employ the preponderance of the evidence standard.”). The
proposed subclass of medically vulnerable lacks numerosity, typicality, and adequacy. The
proposed facility-wide class lacks commonality.
///
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Second, the proposed class must satisfy at least one of the three requirements listed
in Rule 23(b). Petitioners contend that that they satisfy Rule 23(b)(2) because IRDF has
“acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
They allege that IRDF has refused “to reduce facility populations to levels that permit each
class as a whole to observe adequate social distancing or protect themselves from COVID-
19 infection.” [ECF No. 1-3 at 27.] There is no evidence to support the allegation.
B. PROPOSED SUBCLASS OF MEDICALLY VULNERABLE AT IRDF
Petitioners identify their sole subclass representative as Petitioner Calderon Lopez
and propose the following subclass:
All civil immigration detainees incarcerated at the Imperial Regional Detention Facility who are age 45 years or older[7] or who have medical conditions that place them at heightened risk of severe illness or death from COVID-19.3
… 3 Qualifying medical conditions for the medically vulnerable subclasses will be informed by standards set by the CDC. [citations omitted] Pregnancy should also qualify a detainee for subclass membership… [citation and quotation omitted]
ECF No. 1-3 at 9:15-17.
Lack of Numerosity
Petitioners have decided to simply incorporate by reference their April 21, 2020
motion [ECF No. 83-1 at 32-33],8 and they have updated it only with medical information
about two detainees, one of whom is Petitioner Calderon who was released over two months
ago and has since absconded, and the other of whom is Ms. Portillo Gonzalez whose medical
claims are exaggerated or untrue. [See Dr. Martinez Decl., para. 24; Portillo Medical
7 Even in its TRO at OMDC, this Court rejected Petitioners’ argument that the cut-off age should be lowered to forty-five. [ECF No. 41 at 13:14-17; see also ECF No. 26 at 18 (Respondents’ responsive argument); ECF No. 70 at 19 (Respondents’ response to motion for preliminary injunction).]
8 See Respondents’ responsive arguments at ECF No. 27.
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Records.]9 In their April 21, 2020 motion, Petitioners claimed that that they had identified
at least fifteen medically vulnerable detainees at OMDC, but they did not identify anyone
at IRDF [ECF No. 1-3 at 19:11-12], apart from Petitioner Calderon whose medical condition
does not fall within CDC-guidelines. [Dr. Martinez Decl., para. 24; Calderon Medical
Records.]
Apparently they still cannot identify medically vulnerable detainees at IRDF. This is
not surprising given the paucity of COVID-19 related habeas petitions emanating from
IRDF. There has been only one, which is pending before Judge Curiel. See Ventura v.
Archambeault, No. 20-cv-00963-GPC-AGS (S.D. Cal.) (IRDF’s physician found that
Ventura does not have a medical condition that puts him at higher risk of severe illness due
to COVID-19). By contrast, several habeas petitions by OMDC detainees had been filed
and decided by the time this case commenced.
The reason that Petitioners cannot identify medically vulnerable detainees at IRDF is
that there are virtually none. Even though it has been under no order from this Court,
Respondents have taken the same action at IRDF that they took at OMDC by releasing all
medically vulnerable detainees as defined by this Court’s provisional subclass at OMDC
[ECF No. 41], except for approximately eight detainees who are considered too dangerous
to release given their criminal backgrounds. [Valenzuela Decl., para. 23.] As of June 9,
2020, the occupancy of IRDF was at 46.68% capacity. [6/9/20 Marrero Decl., para. 98.] As
of July 1, 2020, it is at 36.57%. [See 7/2/20 Marrero Decl., para. 98.]
Petitioners cannot satisfy the numerosity element to certify a subclass of medically
vulnerable detainees, and this is crucial since their only claim is that IRDF is unreasonably
exposing detainees to serious illness of death from COVID-19.
///
///
///
9 Ms. Portillo’s medical records are being lodged separately under proposed seal.
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Lack of Typicality and Adequacy
Petitioners lack a class representative for the proposed subclass. If a named plaintiff
is not a member of the class, she lacks typicality and therefore may not seek relief on their
behalf. “If none of the named plaintiffs purporting to represent a class establishes the
requisite of a case or controversy with the defendants, none may seek relief on behalf of
himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974),
quoted in NEI Contracting & Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d
528, 532 (9th Cir. 2019).
Petitioners identified Petitioner Calderon as their putative subclass representative
[ECF No. 1, para. 156], but her medical condition does not fall within the CDC guidelines
[Dr. Martinez Decl., para. 24; Calderon Medical Records], and she has absconded, which
also means that she cannot adequately protect the interests of the putative subclass. See
Sosna v. Iowa, 419 U.S. 393, 403 (1975) (“A litigant must be a member of the class which
he or she seeks to represent at the time the class action is certified by the district court.”);
E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (a “class
representative must be part of the class”).
Changed circumstances in Fraihat preclude certification of a subclass of medically
vulnerable detainees
As explained more fully in Respondents’ response to Petitioners’ motion to certify a
similar subclass at OMDC [see ECF No. 27 at 21-22], the petitioners in Fraihat, like
Petitioners here, allege that ICE is failing to comply with CDC guidelines with respect to
the prevention and mitigation of COVID-19 infection at all immigration detention facilities
in violation of their Fifth Amendment rights. See Fraihat, 2020 WL 1932570, at *9, 11, 21.
This Court has rejected the argument that the Fraihat subclass/injunction precludes
the certification of a similar subclass in this case at OMDC, because, “[a]lthough there is
some overlap between this case and Fraihat, ‘It does not appear that Judge Bernal intended,
by the general nationwide relief he ordered, to interfere with the ability of facility-specific
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litigation to proceed. Nor, in any event, does a nationwide class action covering specific
relief at specific facilities seem manageable.’” [ECF No. 41 at 12-13 (quoting Zepeda Rivas
v. Jennings, -- F. Supp. 3d --, No. 20-cv-02731-VC, 2020 WL 2059848, at *4 (N.D. Cal.
Apr. 29, 2020)).
The situation has changed since then, however, because on June 24, 2020, counsel
for Otro Lado10 filed a motion to enforce the Fraihat injunction against ICE/OMDC,
supported by a lengthy declaration from Otro Lado counsel.11 On that same day, the same
Otro Lado counsel filed an application for a temporary restraining order in this district as
to OMDC in Esperanza v. Barr, No. 20cv1148 BAS (AGS), ECF No. 2 (accompanying this
Response), seeking release of the petitioner based on her medical condition and alleged
conditions at OMDC.12 Because of that, local ICE and CoreCivic now have to divert
resources to respond in Fraihat to the same allegations that are being made in this case and
in other habeas petitions that have been filed in this district.
“Plaintiffs generally have ‘no right to maintain two separate actions involving the
same subject matter at the same time in the same court and against the same defendant.’”
Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v.
Easton Corp., 563 F.2d 66, 70–71 (3d Cir. 1977)). In that circumstance, a district court has
the discretion to dismiss the later-filed action. Id. “This discretionary rule also applies to
class actions.” Clardy v. Pinnacle Foods Group, LLC, 16-CV-04385-JST, 2017 WL 57310,
at *3 (N.D. Cal. Jan. 5, 2017); Moreno v. Castlerock Farming & Transp., Inc., CIV-F-12-
0556 AWI, 2013 WL 1326496, at *1 (E.D. Cal. Mar. 29, 2013). “Numerous district courts
10 The law firm of Otro Lado is a plaintiff in Fraihat and has filed multiple habeas petitions in this district on behalf of OMDC detainees, most recently seeking the release of petitioners due to COVID-19.
11 See Fraihat, ECF No. 172 (accompanying this Response as an exhibit). The declaration is located at ECF No. 172-5.
12 On May 29, 2020, Otro Lado filed a similar habeas petition with TRO motion in Candray-de Tobar v. Barr, No. 20cv997 DMS (JLB), ECF No. 2, and voluntarily dismissed it on June 8, 2020.
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have exercised their discretion and applied the rule against duplicative actions to dismiss
later-filed, identical class actions.” Chowning v. Kohl’s Dep’t Stores, Inc.,
CV1508673RGKSPX, 2016 WL 7655752, at *2 (C.D. Cal. Mar. 2, 2016).
This Court should therefore deny certification of the proposed subclass of medically
vulnerable detainees at IRDF and should weigh the likelihood of conflicts with enforcement
actions in Fraihat on behalf of detainees at OMDC and potentially IRDF.
C. PROPOSED FACILITY-WIDE CLASS
Petitioners identify their putative class representatives as Petitioner Calderon and
Mary Doe and propose the following subclass:
All civil immigration detainees incarcerated at the Imperial Regional Detention Facility.
ECF No. 1-3 at 9:12-14.
Since the proposed subclass includes all medically vulnerable detainees, as defined
by Petitioners, it follows that the proposed facility-wide class adds only non-medically
vulnerable detainees.
Lack of Commonality
Petitioners argue that a facility-wide class should be certified to reduce occupancy to
improve conditions for social distancing at OMDC, but Petitioners fail to state, much less
explain, the nexus between the proposed facility-wide class, which adds all non-medically
vulnerable detainees, and the elements of their Fifth Amendment claim. [ECF No. 1-3.]
“Whether a question will drive the resolution of the litigation necessarily depends on the
nature of the underlying legal claims that the class members have raised.” Jimenez v.
Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014); see also Parsons v. Ryan, 754 F.3d
657, 676 (9th Cir. 2014) (“[C]ommonality cannot be determined without a precise
understanding of the nature of the underlying claims.”); Richey v. Matanuska-Susitna
Borough, No. 14-CV-00170 JWS, 2015 WL 1542546, at *5 (D. Alaska Apr. 7, 2015)
(plaintiffs failed to meet their burden of demonstrating commonality where they failed to
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identify the elements of their claims or explain why a determination of their proposed
common questions was central to the validity of them).
Petitioners are overreaching, and any further reduction of occupancy at IRDF would
require individualized determinations based on undefined criteria that are unrelated to the
claim in their petition. Indeed, Petitioners are arbitrarily suggesting that this Court start
releasing asylum applicants, which has nothing to do with their claim. There is no motion
to certify a class of asylum seekers before this Court, and Petitioners have not sought to
amend their petition to include an associated claim. Rather, Petitioners would bypass the
requirements of Rule 23 and other procedural rules and have this Court exercise sweeping
discretion to create de facto subclasses. Petitioners’ request underscores the fact that they
cannot satisfy the commonality element as to a facility-wide class.
This Court must consider whether “a class-wide proceeding [will] generate
common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350
(emphasis in original) (citation and internal quotation marks omitted). “Each class
member’s claim ‘must depend upon a common contention’ and that contention ‘must be of
such a nature that it is capable of classwide resolution—which means that determination of
its truth or falsity will resolve an issue that is central to the validity of each one of the claims
in one stroke.’” Id. “Dissimilarities within the proposed class are what have the potential to
impede the generation of common answers.” Id. at 351 (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)).
To the extent that Petitioners might argue that the mere risk of contracting the disease
constitutes a basis for a facility-wide certification, that is not their constitutional claim, and
in this district alone, no judge has ordered the release of a detainee based solely on the risk
of contracting the disease. See Arizmendi de Paz v. Wolf, No. 20-CV-955-WQH-BGS, 2020
WL 3469372, at *9 (S.D. Cal. June 25, 2020) (“The Court concludes that Petitioner fails to
demonstrate that his continued detention violates ‘the Constitution or laws or treaties of the
United States’”); Quijada v. Wolf, No. 20-cv-0744-WQH (AGS) (S.D. Cal. May 4, 2020)
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(ECF No. 19) (denying Petitioner Lopez’s motion for TRO); Lopez-Marroquin v. Barr, No.
20-cv-682-LAB (MDD), 2020 WL 1905341 (S.D. Cal. Apr. 17, 2020); Habibi v. Barr, No.
20-cv-00618-BAS (RBB), 2020 WL 1864642 (S.D. Cal. Apr. 14, 2020); Kydyrali v. Wolf,
No. 20-cv-00539-AJB (AGS) (S.D. Cal. Apr. 8, 2020) (ECF No. 10); see also Kydyrali v.
Wolf, No. 20-cv-00539-AJB (AGS) (S.D. Cal. May 13, 2020) (ECF No. 23) (denying the
petitioner’s second motion for TRO).
As this Court implicitly acknowledged [ECF No. 54 at 2:19-22], the Fifth
Amendment does not require that Respondents “completely eliminate” any risk of COVID-
19 infection; it requires only that they take reasonable measures to mitigate the risk so that
detainees are “reasonably safe” during their detention. See Gordon v. Cty. of Orange, 888
F.3d 1118, 1124–25 (9th Cir. 2018); Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071
(9th Cir. 2015); Fraihat, 2020 WL 1932570, at *22. Dawson v. Asher, No. C20-0409JLR-
MAT, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (quoting DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)); see also Habibi v. Barr,
2020 WL 1864642, at *6.
Petitioners nonetheless expect this Court to gloss over Rule 23 requirements, certify
the entire population at IRDF, and then sort things out, starting with a release of asylum
applicants, which is entirely unrelated to the claim in their petition. Petitioners request that
this Court release “all asylum seekers who do not have active ongoing credible fear or
removal proceedings” [ECF No. 83-1 at 11] and/or “individuals from IRDF who do not
have active underlying credible fear or removal proceedings.” [Id. at 14:17-18.] Although
they have not amended their petition, Petitioners contend that there is a due process
violation, because their “credible fear interviews have been indefinitely postponed or
rescheduled due to COVID-19.” [ECF No. 83-1 at 33:25.] Apart from the improper
procedural posture, Petitioners’ allegations are unfounded and non-specific.13 [Valenzuela
13 “Due to the ongoing COVID-19 pandemic, however, at least some credible fear interviews have not been going forward at IRDF.” [ECF No. 83-1 at 24 (citing ECF No. 83-
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Decl., paras. 13-14.] No proceedings have been suspended due to COVID-19. [See id.]
Petitioners do not explain what they mean by “rescheduled interviews … due to COVID-
19.” [ECF No. 83-1 at 33:26.] No detainees have brought habeas actions complaining of
such delays due to COVID-19, and Respondents are not aware of any such pattern of
rescheduling of interviews. Continuances are, of course, common practice in all
proceedings: sometimes they are requested by the adjudicator, sometimes they are requested
by one of the parties, and the reasons vary. Petitioners would have this Court consider, on
a case-by-case basis, whether there was a delay or continuance in an immigration
proceeding and the reason for the delay or continuance. Their proposal therefore
underscores their inability to satisfy the element of commonality for a facility-wide class at
IRDF.
At any rate, apart from Petitioners’ failure to move to certify a subclass of asylum
applicants, the proposed subclass lacks numerosity, because no removal proceedings have
been suspended [Valenzuela Decl., paras. 13-14], and it lacks commonality, because asylum
applicants are not a monolithic group. A large percentage of so-called “asylum” applicants
are eligible only for withholding of removal or protection under the Convention against
Torture14 and are not eligible for asylum,15 which would lead to lawful permanent resident
status. See 8 U.S.C. § 1159(b). Without more, it means that such applicants have no
“probable path to future lawful status” and therefore pose a greater flight risk. Matter of R-
A-V-P-, 27 I&N Dec. 803, 805 (BIA 2020).
Petitioners contend that asylum seekers do not, in general, pose a risk of danger [ECF
No. 83-1 at 23], but that is not accurate under current circumstances. The impetus of this
case is the pandemic, and all releases from detention at OMDC and IRDF have been
conducted under strict controls to ensure public safety in coordination with county health
6 (Declaration of attorney Lopez) (“I have been informed that as of Thursday, May 21, credible fear interviews (CFIs) are not going forward at IRDF.”).
14 See 8 U.S.C. § 1231(b)(3)(B); 8 C.F.R. § 1208.16(c). 15 See 8 U.S.C. § 1158.
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officials. Asylum applicants, in general, pose a very high risk of flight, which poses a health
hazard to the public. Petitioners’ own putative class representative is an asylum applicant
who absconded after she was released on ATD.
The number of in absentia orders by IJs in asylum cases rose 400% from 2014-2018.
U.S. Dep’t of Justice, Statistics Yearbook FY 2018 at 33, available at
https://www.justice.gov/eoir/file/1198896/download [hereinafter 2018 Yearbook]. “Forty-
four percent (44%) of all non-detained removal cases end with an in absentia order of
removal due to an alien’s failure to attend a scheduled immigration court hearing.” Exec.
Office for Immigration Review, Myths vs Facts about Immigration Proceedings, May 2019,
available at https://www.justice.gov/eoir/page/file/1161001/download.
The explanation for such a high percentage of absconding asylum applicants is that
the vast majority of asylum claims are unlikely to succeed. “The median asylum grant rate
for all immigration courts is eleven percent,” In San Diego in 2018, the asylum grant rate
was eight percent. See 2018 Yearbook at 28. When applying flight risk factors pursuant to
In re Guerra, 24 I&N Dec. 37 (BIA 2006) in bond redetermination hearings, IJs give
considerable weight to the merits of the asylum claim, because aliens are less likely to
appear to prosecute claims that they expect to lose. See, e.g., In re Jose Nectale del Cil-
Amaya, 2009 WL 3713292 (BIA Oct. 27, 2009) (“critical in assessing flight risk is whether
the respondent has any potential for relief from removal that might tend to act as an incentive
to appear for future immigration proceedings.”).
Several factors help assess flight risk, and a favorable credible/reasonable fear
determination is not necessarily indicative of success on the ultimate asylum claim. See
Matter of R-A-V-P-, 27 I&N Dec. at 805 (“Even for aliens who are found to have a credible
fear, a grant of asylum is uncertain, in part because the legal standard for establishing
eligibility for asylum is higher than that for a credible fear.”). Furthermore, a large
percentage of detainees at IRDF have received negative credible fear determinations [see
Valenzuela Decl., para. 13], which indicates a weak case, since the asylum officer has found
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that there is not “a significant possibility” that the applicant “can establish eligibility for
asylum … or for withholding of removal.” 8 C.F.R. § 208.30(e)(2).
In sum, Petitioners’ suggested approach is an admission that a facility-wide class does
not provide a common (or any) answer to their claim. This facility-wide approach of sorting
things out after the fact would entail making individualized decisions about the reasons for
delays, if any, in asylum cases, dangerousness to the community, flight risk,16 and any other
criteria that Petitioners might propose along the way.
Failure to satisfy Rule 23(b)
The proposed class must satisfy at least one of the three requirements listed in Rule
23(b), and Petitioners contend that that they satisfy Rule 23(b)(2) with their allegation that
IRDF has refused “to reduce facility populations to levels that permit each class as a whole
to observe adequate social distancing or protect themselves from COVID-19 infection.”
[ECF No. 1-3 at 27.] There is no evidence to support their allegation. IRDF has reduced
occupancy to 36.57%, and apparently the reduction, in conjunction with good practices, has
worked. Only two detainees have tested positive, and both of them have recovered. [See
7/2/20 Marrero Decl. and Dr. Martinez Decl; see also ICE, COVID-19 ICE Detainees
Statistics by Facility (0 confirmed cases currently under isolation or monitoring as of June
30, 2020) https://www.ice.gov/coronavirus (last visited July 2, 2020).]
In sum, Petitioners cannot satisfy the Rule 23 requirements for certification of a
facility-wide class, and there is no basis for certifying a subclass of asylum applicants.
///
///
///
16 Flight risk is of course a strong governmental concern, see Nken v. Holder, 556
U.S. 418, 436 (2009), but more importantly, flight risk is inextricably tied to dangerousness in the midst of this pandemic. Petitioners’ putative representative, an asylum seeker, has absconded, which poses a heightened risk to herself and to the general public. Given her disregard for the other conditions of her release, there is no reason to believe that she is self-quarantining in her sponsor’s home, as she represented she would.
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IV
CONCLUSION
Petitioners have not and cannot satisfy their burden of satisfying the elements of Rule
23 for the proposed subclass of medically vulnerable detainees, for the proposed facility-
wide class, or for the suggested de facto subclass of certain asylum applicants. IRDF has
released all CDC-defined medically vulnerable detainees, except for approximately eight
who pose a danger to the community, and there is no putative class representative. Petitioner
Calderon is not medically vulnerable, and she has absconded.
There is also no basis for Petitioners’ proposed facility-wide class. Their claim has
been satisfied: IRDF has minimized the risk of serious illness and death to detainees through
the release of medically vulnerable detainees and through reasonable practices to prevent
spread of the virus there. IRDF’s low numbers of positives are the ultimate proof of that.
Any further reduction of the population at IRDF would entail factors unrelated to
Petitioners’ claim and/or would require individualized determinations based on arbitrary,
undefined criteria.
DATED: July 2, 2020 Respectfully submitted, ROBERT S. BREWER JR. United States Attorney s/ Samuel W. Bettwy SAMUEL. W. BETTWY Assistant U.S. Attorney s/ Rebecca G. Church REBECCA G. CHURCH Assistant U.S. Attorney s/ Betsey A. Boutelle BETSEY A. BOUTELLE Assistant U.S. Attorney Attorneys for Respondents
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