Paul, Weiss and ACLU Secure Class Certification and Deposition of ICE in COVID-19 Immigration Detention Litigation

Paul, Weiss, along with co-counsel ACLU Fund of Michigan and ACLU Foundation National Prison and Immigrants’ Rights Projects, secured a class certification of ICE immigration detainees held at the Calhoun County Correctional Center in Battle Creek, Michigan and a subclass certification of detainees whose underlying medical conditions put them at high risk of severe illness or death from COVID-19.

Judge Judith Levy of the U.S. District Court for the Eastern District of Michigan held that both the class and subclass satisfy Rule 23’s four requirements—numerosity, commonality, typicality, and adequacy. Judge Levy rejected the defendants’ arguments that commonality is not satisfied because putative class members face different levels of risk from COVID-19 and pose varying degrees of flight risk and danger to the community. Judge Levy held that “the issues of individual flight risk and dangerousness can be managed through conditional relief” and “do not override the common questions posed by the class.” Judge Levy also rejected this argument for the medically vulnerable subclass and wrote that the question is not “the precise level of risk” a medically vulnerable individual faces, but rather “whether a given Plaintiff had heightened risk, which is a binary determination.”

On August 4, Judge Levy announced that the court will conduct bail hearings for the rest of the subclass starting next week. On August 10, the court will hold its first bail hearing for five medically vulnerable plaintiffs. On August 12, the court will hear an additional 10 subclass members and continue to hear medically vulnerable plaintiffs in groups of 10 over the next few weeks. Based on our current estimation, roughly 50 detainees are members of the subclass. We hope to secure release for all of them by the end of August.

Judge Levy also granted, in part, the plaintiffs’ motion for a 30(b)(6) deposition of ICE. Judge Levy found good cause exists for a deposition of ICE on several topics, including ICE’s supervision of detainees at Calhoun and ICE’s ability to deport detainees during the COVID-19 pandemic. This will be one of the first depositions nationwide of an ICE official during the pandemic.

These victories are part of an ongoing class action lawsuit brought by Paul, Weiss and co-counsel on behalf of 20 named plaintiffs seeking to represent a class of all detainees at Calhoun. The complaint seeks immediate release and/or declaratory relief for the class, asserting that Calhoun is not designed or equipped to handle the extraordinary public health crisis presented by COVID-19. The complaint further argues that, left unchecked, ICE’s failure to act will result in a needless and avoidable loss of life, and that certain members of the class are at an advanced age or suffer from medical conditions such as diabetes, serious heart conditions, and obesity, that put them at particularly high risk of post-infection complications. Twelve medically vulnerable plaintiffs have already been released—11 were released pursuant to Judge Levy’s grant of their preliminary injunctions, and one was released by ICE voluntarily as a result of our filings.

The Paul, Weiss team includes litigation partners Mark Mendelsohn and Jeannie Rhee, counsel Rachel Fiorill and Peter Jaffe, and associates Akila Bhargava, Jacob Braly, Matthew Driscoll, Jessica Finberg, Geanette Foster, Kate Gadsden, Darren Gardner, Joseph Granzotto, Aaron Haier, Eugenie Iseman, Stanton Lawyer, Rebecca Lockert, Sarah Maneval, Bethlehem Mebratu, Parker Murray, Robert O’Loughlin, Breanne Palmer, Agbeko Petty, Samuel Prose, Edward Robinson, Oleg Shik, and Jonathan Silberstein-Loeb. Pro bono counsel Emily Goldberg and associate Jeremy Benjamin provided invaluable support.