"I’m really happy that Mr. Essien is going to be getting out of that detention center. I think that the court was clear that ICE’s protocols that they’ve implemented are not going to be enough to keep the virus out of the facility if it’s not already there," says Aaron Hall, the immigration attorney representing Essien.
The U.S District Court of Colorado order, published by Judge William J. Martinez on April 24, came exactly two weeks after Essien filed a habeas petition in court seeking his release from ICE custody over the heightened risk that he would become seriously ill, and perhaps die, from COVID-19 while inside the facility in Aurora.
Essien, a Nigerian citizen without legal status in the U.S., has convictions dating from 2009 for racketeering, forgery and theft. He is likely to be released within hours, and will have to stay with his sister at her home in Aurora for the duration of his time outside the facility; he will probably have to wear an ankle monitor. (Federal attorneys representing ICE say they are still reviewing the decision and aren't yet ready to comment.)
Habeas petitions filed on behalf of other medically vulnerable ICE detainees throughout the country have met with mixed results. Seven other ICE detainees in Aurora filed habeas petitions in recent weeks; six have yet to be adjudicated. (A seventh man was released before a judge issued a ruling.)
Additionally, attorneys filed a habeas petition on behalf of fourteen medically vulnerable detainees in the Aurora facility on April 14; the next day, eight of the detainees were released. No decision has been issued for the six remaining detainees.
Since the COVID-19 pandemic hit Colorado, there have been a few COVID-19 scares at the Aurora facility, resulting in dozens of detainees being quarantined.
So far, though, there have been zero confirmed cases of COVID-19 among detainees at the facility, which is run by the private prison company GEO Group through a contract with ICE. As of April 14, six Aurora ICE detainees had been tested for COVID-19, according to documents filed in court by local ICE officials. Meanwhile, five staffers have tested positive for COVID-19.
On April 15, ICE posted on its website that since the COVID-19 pandemic started sweeping the nation, the federal agency "has released nearly 700 individuals after evaluating their immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns." As of April 18, ICE had approximately 31,000 detainees in its custody; about 460 of them are being kept in the Aurora facility.
In his ruling, Martinez summarized what has been done so far to prevent the spread of COVID-19 within the Aurora facility, noting that new detainees are now screened for symptoms of COVID-19 and that staff members "isolate those with such symptoms" for fourteen days. Staff are also limiting professional visits to non-contact visits, and have suspended in-person social visitation and facility tours. Martinez also noted that the facility screens all staff and vendors when they enter the facility, including taking temperatures and having them fill out questionnaires.
Still, Martinez said he doesn't believe that these protocols will prevent COVID-19 from getting inside the facility, and suggested that there's a high likelihood of that still happening.
"The problem for the Facility — and the whole world right now — is the virus’s capacity for asymptomatic transmission," Martinez wrote in his decision, adding that "although the Facility screens incoming inmates, and keeps even the apparently healthy inmates away from the general population for fourteen days, the Facility’s only precaution as to staff and vendors appears to be taking their temperature and having them fill out a questionnaire. This is inadequate to prevent asymptomatic transmission of the disease."
Martinez also noted that social distancing is largely impossible for detainees, and that based on all of this information, "Essien has shown a likelihood that he will contract the virus if it is introduced into the Facility."
Martinez went on to describe Essien's heightened risk of becoming seriously ill or dying from COVID-19 if he were to contract it. Essien, 55, has hypertension and a history of recurring pneumonia and is a borderline diabetic; his condition, taken together with other risk factors, persuaded Martinez that Essien was in particular danger.
Also helping Martinez come to his decision to order Essien's release was that he had somewhere to go. "The court finds that Essien would be at substantially less risk of contracting COVID-19 at his sister’s home than at the Facility," Martinez wrote.
The judge also gave weight to the fact that Essien had been convicted of nonviolent crimes.
"ICE appears to want to keep Essien in detention more to prove a point about its authority to detain generally, despite COVID-19, rather than out of any consideration specific to Essien," Martinez concluded, calling Essien's current detention "punitive" and "in violation of the Fifth Amendment."
Read the judge's full ruling: