By Melissa Angell

Law360 (September 21, 2020, 11:15 PM EDT) -- A Maryland federal judge has certified a class of medically vulnerable immigrants held in detention facilities who claim that the coronavirus pandemic has created "unconstitutional conditions of confinement," but denied the class expedited bail hearings.

In a 44-page opinion Friday, U.S. District Judge Theodore D. Chuang determined that U.S. Immigration and Customs Enforcement detainees who are currently held in ICE detention centers — or will be in the future — who are either medically high-risk or who are 50 years or older meet the standards for class certification.

However, the judge also concluded that conditions at the Howard County Detention Center and the Worcester County Detention Center in Maryland have improved enough to continue holding immigrants, including those who are medically vulnerable to the virus, during the coronavirus pandemic. Therefore, he won't currently grant their requests for expedited bail hearings, he said.

The judge noted that there have been no cases of ICE detainees contracting coronavirus at the facilities in nearly six months.

"While petitioners and the putative class members all assert that they have conditions that place them at high risk of severe illness should they contract COVID-19, the fact remains that during their detention, that harm has not come to fruition," the opinion says.

The ruling is the latest development in a lawsuit brought by ICE detainees Mauricio Coreas and Angel Guzman Cedillo on March 24 during the early stages of the pandemic.

Coreas, who has diabetes, and Cedillo, who has hypertension, chronic pain and prostate problems, asked the judge to release them from the detention centers, arguing that they're more susceptible to COVID-19. The pair claimed that being held in the facilities with their medical conditions violates their Fifth Amendment rights to substantive due process, because ICE allegedly acted with "deliberate indifference" to their health and safety needs.

Although the judge initially found "significant deficiencies" in the facilities, such as an absence of social distancing enforcement, a lack of testing and no protocol that addresses high-risk medical populations, he initially denied Coreas and Cedillo's requests for an early release, finding there was no evidence that the coronavirus had infiltrated the facilities.

But shortly after that decision, a nurse tested positive for coronavirus at one of the facilities and an immigration detainee allegedly presented symptoms for the virus, but was not tested. In light of the new cases, the petitioners filed an amended complaint in May adding another petitioner, William Kemcha, and the judge granted preliminary injunctions that temporarily released the trio before their immigration hearings.

On May 29, the petitioners filed a second amended class action petition asking the judge to certify a class of detainees seeking early release. This class petition added Quintero Hernandez, Navarro Martinez and Ramos Reyes as petitioners.

Meanwhile, the government appealed two of the judge's prior decisions that ordered Coreas, Cedillo and Kemcha to be released from detention. That appeal is pending in the Fourth Circuit. On May 26, an additional detainee, Alpha Ibrahim Bah Mansaray, filed a petition seeking release from the Howard County Detention Center based on his health status, and his petition was eventually consolidated with Coreas' case.

On July 17, the judge appointed Saint Louis University medical professor Dr. Fred Rottnek to inspect the detention centers' medical clinics, isolation and housing units, and common areas. Rottnek also spoke with immigrants held in the facilities during his visits, though the petitioners allege that ICE detainees were "improperly warned" by an officer that providing negative information would result in them being transported to facilities far away.

Rottnek concluded that both facilities he examined appeared to provide sufficient medical attention for vulnerable populations, but they didn't have plans to accommodate or to provide additional protective measures in the case of an outbreak. Rottnek noted that there was no way to guarantee medically vulnerable detainees won't contract the virus, but that risks could be mitigated by surveilling testing, providing masks and relocating vulnerable populations when necessary to maximize social distancing.

In light of the professor's analysis, Judge Chuang said in his opinion that he wouldn't expedite bail hearings; however, the judge pointed out that he could change his ruling in the future depending on how ICE maintains its coronavirus prevention efforts. "The court notes ... that this determination is not a permanent one. It is not lost on the court that the vast majority of improvements, in mitigation measures, and the entire surveillance testing effort, did not materialize until after the filing of this case and the court's earlier rulings adverse to respondents."

He added that although none of the detainees appear to have contracted COVID-19, a number of staff and state detainees tested positive for it within the last six months, according to the opinion.

Counsel for Coreas and Cedillo told Law360 on Monday that the decision to deny expedited bail was disappointing, but that it "was clear that this decision is not permanent and that most of the conditions reforms the facilities made were a result of this litigation."

"If conditions change in the Maryland detention facilities, we can renew our motion for expedited bail for class members and seek their release from detention," Amber Qureshi, staff attorney at the National Immigration Project of the National Lawyers' Guild said.

The class certification order coincides with an increased focus on ICE and its actions in light of recent medical abuse claims. A Georgia immigration detention center reportedly denied proper medical care and COVID-19 testing to immigrants in custody.

The lawsuit names as defendants Worcester County Warden Donna Bounds, Howard County Detention Center Director Jack Kavanaugh, ICE official Janean Ohin, ICE Acting Director Matthew T. Albence and U.S. Attorney General William Barr.

Representatives and counsel for ICE did not immediately respond to requests for comment Monday.

Coreas and Cedillo are represented by Amber N. Qureshi and Sirine Shebaya of the National Immigration Project of the National Lawyers' Guild. Kemcha is also represented by Shebaya.

Mansaray is represented by Sheri Hoidra of Sheri Hoidra Law Office LLC and Brian S. Green of the Law Office of Brian Green.

Bounds, Kavanaugh, Ohin, Albence and ICE are represented by Theo Nickerson of the U.S. Department of Justice.

Barr is represented by Vickie LeDuc and Vincent J. Vaccarella of the U.S. Attorney Office for the District of Maryland.

The case is Mauricio Coreas et al. v. Donna Bounds et al., case number 8:20-cv-00780, in the U.S. District Court for Maryland. The appeals are Angel Cedillo v. Donna Bounds, case number 20-7005, and Mauricio Coreas v. Jack Kavanaugh, case number 20-6984, both in the U.S. Court of Appeals for the Fourth Circuit.

--Additional reporting by Suzanne Monyak. Editing by Bruce Goldman.

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