University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Dawson v. Asher IM-WA-0044
Docket / Court 2:20-cv-00409-JLR-MAT ( W.D. Wash. )
State/Territory Washington
Case Type(s) Immigration and/or the Border
Special Collection COVID-19 (novel coronavirus)
Attorney Organization ACLU Immigrants' Rights Project
ACLU National Prison Project
Northwest Immigrant Rights Project (NWIRP)
Case Summary
COVID-19 Summary: In this case filed on March 16, 2020 by nine particularly vulnerable immigration detainees, the court declined to grant preliminary relief. It held that ongoing detention was not unlawfully punitive notwithstanding the threat posed by congregate detention during the coronavirus ... read more >
COVID-19 Summary: In this case filed on March 16, 2020 by nine particularly vulnerable immigration detainees, the court declined to grant preliminary relief. It held that ongoing detention was not unlawfully punitive notwithstanding the threat posed by congregate detention during the coronavirus pandemic and found that the immigration facility was taking adequate measures to stop the spread of COVID-19. The court has not yet resolved the case on the merits.
On March 16, 2020, nine persons held in civil detention by Immigration and Customs Enforcement (ICE) at the Northwest Detention Center (NWDC) in Tacoma, WA who, because their age or underlying medical conditions, were particularly susceptible to a serious COVID-19 infection filed this habeas petition and complaint in the United States District Court for the Western District of Washington. Represented by the Northwest Immigrant Rights Project, the ACLU National Prison Project, and the ACLU Immigrants' Rights Project, the plaintiffs sued ICE, two of its directors, and the warden of the Tacoma detention center. The plaintiffs alleged that harm posed to them by continued detention during the COVID-19 pandemic violated their right to substantive due process under the Fifth Amendment. They sought a writ of habeas corpus ordering their immediate release or, in the alternative, injunctive relief ordering ICE to release them. The plaintiffs also sought attorney’s fees, costs, and declaratory relief that "continued detention in civil immigration custody of individuals at increased risk for severe illness, including all people over fifty years old and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause."

The case was assigned to Judge James L. Robart and Magistrate Judge Mary Alice Theiler.

The Northwest Detention Center is located in the Seattle metropolitan area, which experienced the first and, as of March 17, 2020, largest COVID-19 outbreak in the United States. In response, public health measures throughout the area emphasized and enforced social distancing. However, immigration detention facilities are “congregate environments,” or places where people live and sleep in close proximity and, thus, cannot practice social distancing. Given the crowding and lack of adequate medical infrastructure, if COVID-19 were introduced into the detention center, it would spread easily. The spread of COVID-19 (for which there was no vaccine, known treatment, or cure) would be especially dangerous for detainees over the age of 50 or those with certain underlying health conditions such as lung, heart, and kidney disease. The complaint included recommendations from public health experts that these high-risk individuals be released from detention for their own safety.

The plaintiffs asserted that the Fifth Amendment guarantees that civil detainees, including immigrant detainees, may not be subjected to punishment, and that this right is violated when civil detainees are subjected to "conditions of confinement that amount to punishment or [the federal government] does not ensure those detainees’ safety and health." The plaintiffs contended that by continuing to detain high-risk individuals, the defendants subjected them to conditions that amounted to punishment and that failed to ensure their safety and health. The plaintiffs further claimed that continued detention with the possibility of a COVID-19 outbreak in the facility subjected the plaintiffs to a substantial risk of serious harm, in violation of the Due Process Clause of the Fifth Amendment. Lastly, the plaintiffs argued that ICE has the authority to exercise discretion in releasing vulnerable civil immigrant detainees like the plaintiffs.

Immediately, the plaintiffs filed a motion for a temporary restraining order (TRO) for their immediate release.

Three days later, on March 19, Judge Robart issued an order denying the plaintiffs' motion for a TRO. Judge Robart concluded that the continued detention of these vulnerable plaintiffs amidst an outbreak of COVID-19 in the surrounding area did not amount to punishment. Judge Robart found that the conditions did not amount to punishment because there were no allegations of "express intent" to punish plaintiffs and because continued detention of plaintiffs was not excessive relative to the government's objective of "preventing detained aliens from absconding and ensuring that they appear for removal proceedings." Furthermore, Judge Robart decided that, because the plaintiffs only alleged the "possibility of harm," not that an outbreak of COVID-19 actually existed at NWDC, plaintiffs did not show that irreparable harm was likely in the absence of an injunction. In a footnote, Judge Robart stated that "the court is mindful of the gravity and rapidly changing nature of the COVID-19 pandemic. The court emphasizes that this order is based on and extends no further than the narrow set of facts, arguments, and requested relief presently before the court." 447 F. Supp. 3d 1047.

The defendants' filing opposing entry of a TRO had argued that the plaintiffs lacked standing. The court declined to rule on this in the March 19 order because the plaintiffs had not had an opportunity to respond. On March 20, the court ordered the plaintiffs to respond and explain why this case should not be dismissed for lack of standing.

On March 24, the plaintiffs filed a second motion for a TRO premised on developments in how courts were responding to the possibility of a COVID-19 outbreak in immigration detention facilities. The plaintiffs cited to a Ninth Circuit decision "releasing an individual from immigration detention '[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers'" (Xochihua-Jaimes v. Barr). The plaintiffs also referenced "other federal court orders releasing individuals 'on bail or delay[ing] their imprisonment in light of the COVID-19 crisis'" and the fact that individuals have tested positive for COVID-19 at other immigration detention facilities in the United States.

In response, the defendants argued that the plaintiffs' continued detention was not "an excessive condition in relation to the legitimate objective of immigration detention." Defendants asserted that, at the time of filing, there were no confirmed cases of COVID-19, overcrowding was not an issue, and that ICE had "implemented robust procedures and protocols to protect the detainees." The defendants also filed a notice of supplemental authority, citing cases in which courts in this district denied motions for TROs to release immigration detainees on Fifth Amendment grounds.

On April 8, Judge Robart denied the plaintiffs' second motion for a TRO. First, Judge Robart found that the plaintiffs had standing, as they sufficiently alleged a concrete injury in the form of unsafe conditions, these conditions were traceable to defendants, and this injury was likely to be redressed by their release. Judge Robart also found that the court had jurisdiction to adjudicate the motion via a habeas petition. But Judge Robart concluded that the plaintiffs had not demonstrated a likelihood of success on the merits because there had not yet been a confirmed case of COVID-19 at the NWDC and because defendants submitted "evidence that they are taking substantial measures at this moment to prevent an outbreak of COVID-19 at the NWDC and contain an outbreak should one occur." Judge Robart further stated that "it would be improper for this court to rely on conditions at other detention facilities to conclude that the conditions at the NWDC represent a Fifth Amendment violation." Judge Robart also concluded that plaintiffs did not meet their burden of showing that irreparable injury is likely in the absence of an injunction: "the court cannot conclude either that the spread of COVID-19 inside the NWDC is inevitable, or that Respondents will be unable to contain it if it occurs."

Judge Robart also ordered defendants to inform the plaintiffs and the court "within at least 24 hours after learning that any individual physically present at the NWDC tests positive for or is otherwise diagnosed with COVID-19." 2020 WL 1704324.

The next day, Magistrate Judge Theiler issued an order for defendants to show cause why a writ of habeas corpus should not be granted by April 30. Defendants were also ordered to file a status update with the court if the custody status of any plaintiff changed.

On April 30, defendants filed a motion to dismiss and a memorandum showing why a writ of habeas corpus should not be granted.

The Clearinghouse does not have access to many of the key documents filed during the summer and fall of 2020 because the documents are restricted on PACER. According to the docket:
  • The defendants filed numerous notices in response to the court's April 8 decision (often several per week) and implemented a new COVID-19 testing protocol on June 8.
  • Magistrate Judge Theiler filed a report and recommendation on August 17.
  • The plaintiffs filed objections to the Magistrate's report on August 31, to which ICE responded on September 14.
The court has not acted on the Magistrate's report as of November 16, 2020. Because the Clearinghouse does not currently have access to many recently filed documents, the status of the plaintiffs' conditions and COVID-19 spread in the NWDC are unclear. The case is ongoing.

Emily Kempa - 03/24/2020
Aaron Gurley - 05/18/2020
Timothy Leake - 10/16/2020


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Substantive Due Process
Content of Injunction
Preliminary relief denied
Defendant-type
Corrections
General
Bathing and hygiene
Conditions of confinement
Habeas Corpus
Over/Unlawful Detention
Placement in detention facilities
Sanitation / living conditions
Totality of conditions
Immigration/Border
Constitutional rights
Detention - conditions
Undocumented immigrants - rights and duties
Medical/Mental Health
COVID-19 Release Denied
COVID-19 Release Requested
Medical care, general
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Non-government for profit
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) U.S. Immigration and Customs Enforcement
Warden of the Northwest Detention Center
Plaintiff Description Individuals held in a civil detention center near Seattle who are particularly susceptible to harm or death from COVID-19 due to their age (over 50) or their underlying health conditions
Indexed Lawyer Organizations ACLU Immigrants' Rights Project
ACLU National Prison Project
Northwest Immigrant Rights Project (NWIRP)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 03/16/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Dawson v. Asher
ACLU
Date: March 17, 2020
By: ACLU
[ Detail ] [ External Link ]

Docket(s)
2:20-cv-00409-JLR-MAT (W.D. Wash.)
IM-WA-0044-9000.pdf | Detail
Date: 11/13/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief [ECF# 1]
IM-WA-0044-0001.pdf | Detail
Date: 03/16/2020
Source: PACER [Public Access to Court Electronic Records]
Motion for Temporary Restraining Order [ECF# 2]
IM-WA-0044-0002.pdf | Detail
Date: 03/16/2020
Source: PACER [Public Access to Court Electronic Records]
Declaration of Robert B. Greifinger, MD; Declaration of Dr. Jonathan Louis Golob; Declaration of Dr. Marc Stern [ECF# 4-6]
IM-WA-0044-0005.pdf | Detail
Date: 03/16/2020
Source: ACLU
Declaration of Dr. Ada Rivera; Government Response to Motion for Temporary Restraining Order [ECF# 31 & 28]
IM-WA-0044-0006.pdf | Detail
Date: 03/18/2020
Source: PACER [Public Access to Court Electronic Records]
Order Denying Temporary Restraining Order [ECF# 33] (447 F.Supp.3d 1047) (W.D. Wash.)
IM-WA-0044-0003.pdf | WESTLAW| LEXIS | Detail
Date: 03/19/2020
Source: PACER [Public Access to Court Electronic Records]
Order to Show Cause [ECF# 34] (W.D. Wash.)
IM-WA-0044-0004.pdf | Detail
Date: 03/20/2020
Source: PACER [Public Access to Court Electronic Records]
Defendants' Reply to Plaintiffs' Response to the Court's Order to the Show Cause [ECF# 63]
IM-WA-0044-0011.pdf | Detail
Date: 03/30/2020
Source: PACER [Public Access to Court Electronic Records]
Defendants' Response in Opposition to the Motion for a Temporary Restraining Order [ECF# 64]
IM-WA-0044-0010.pdf | Detail
Date: 03/30/2020
Source: PACER [Public Access to Court Electronic Records]
Second Declaration of Dr. Ada Rivera [ECF# 65]
IM-WA-0044-0013.pdf | Detail
Date: 03/30/2020
Source: PACER [Public Access to Court Electronic Records]
Declaration of Drew H. Bostock [ECF# 66]
IM-WA-0044-0012.pdf | Detail
Date: 03/30/2020
Source: PACER [Public Access to Court Electronic Records]
Supplemental Declaration of Facility Administrator Stephen Langford, NWIPC Per Count's Order to File Additional Evidence Dated April 1, 2020 [ECF# 74]
IM-WA-0044-0014.pdf | Detail
Date: 04/03/2020
Source: PACER [Public Access to Court Electronic Records]
Declaration of Dr. Sheri Malakhov A, M.D. [ECF# 75]
IM-WA-0044-0015.pdf | Detail
Date: 04/03/2020
Source: PACER [Public Access to Court Electronic Records]
Supplemental Declaration of Drew H. Bostock in Response to the Court's Order to File Additional Evidence [ECF# 76]
IM-WA-0044-0016.pdf | Detail
Date: 04/03/2020
Source: PACER [Public Access to Court Electronic Records]
Second Supplemental Declaration of Drew H. Bostock in Response to the Court's Order to File Additional Evidence [ECF# 84]
IM-WA-0044-0008.pdf | Detail
Date: 04/06/2020
Source: PACER [Public Access to Court Electronic Records]
Supplemental Declaration of Dr. Sheri Malakhov A, M.D. [ECF# 86]
IM-WA-0044-0009.pdf | Detail
Date: 04/06/2020
Source: PACER [Public Access to Court Electronic Records]
Order Denying Petitioners' Second Motion for a Temporary Restraining Order [ECF# 91] (2020 WL 1704324) (W.D. Wash.)
IM-WA-0044-0007.pdf | WESTLAW | Detail
Date: 04/08/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Robart, James L. (W.D. Wash.) show/hide docs
IM-WA-0044-0003 | IM-WA-0044-0004 | IM-WA-0044-0007 | IM-WA-0044-9000
Plaintiff's Lawyers Adams, Matthew (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Cho, Eunice (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Fathi, David Cyrus (District of Columbia) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Herat, Enoka (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002
Jadwat, Omar C. (New York) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Korthuis, Aaron (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Midgley, John (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Ngo, My Khanh (California) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Tan, Michael K. T. (New York) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Warden-Hertz, Tim Henry (Washington) show/hide docs
IM-WA-0044-0001 | IM-WA-0044-0002 | IM-WA-0044-9000
Defendant's Lawyers Byerley, David J (District of Columbia) show/hide docs
IM-WA-0044-0006
Hirst, Kevin (District of Columbia) show/hide docs
IM-WA-0044-0006
Lambert, Michelle R. (Washington) show/hide docs
IM-WA-0044-0006 | IM-WA-0044-0010 | IM-WA-0044-0011 | IM-WA-0044-9000
Mell, Joan K. (Washington) show/hide docs
IM-WA-0044-9000
Moran, Brian T (Washington) show/hide docs
IM-WA-0044-0006 | IM-WA-0044-0010 | IM-WA-0044-0011
Other Lawyers Buergel, Susanna M. (New York) show/hide docs
IM-WA-0044-9000
Gibbs, Robert H. (Washington) show/hide docs
IM-WA-0044-9000
Johnson, Darren W. (New York) show/hide docs
IM-WA-0044-9000
Kimball-Stanley, David C. (New York) show/hide docs
IM-WA-0044-9000

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