Bar News Masthead

By Scott Merrill

 

Two Immigration and Customs Enforcement (ICE) detainees have been granted temporary release by government officials from the Strafford County Department of Corrections jail in Dover, NH.

The release of Darwin Aliesky Cuesta-Rojas and Jose Nolberto Tacuri-Tacuri, two of three plaintiffs in a class action lawsuit filed on April 17th, came even before a status conference was scheduled to take place Wednesday, April 22nd.

According to Judge Laynda B. McCafferty, the chief judge of the U.S. District Court for New Hampshire, the government agreed to release the two detainees before the telephone conference Wednesday.

“I did not order their release. No release orders have been issued in the case yet,” she said. “We are having a video hearing on the legal questions surrounding release/bail on Monday afternoon.”

The lawsuit, filed in U.S. District Court in Concord, seeks the immediate release of all Immigration and Customs Enforcement (ICE) civil detainees from Strafford County Department of Corrections because of unsafe conditions at the jail in relation to the COVID-19 virus.

“We were happy with the initial order,” said Attorney Nathan Warecki, referring to the move by the court to place the burden on the government to explain why they’re keeping people.

Last week McCaferrty ordered the U.S. Department of Homeland Security and ICE to provide a good reason for the continued detention of three people held at Strafford County jail.

Reasons for continued detention could include violent criminal records or challenges of their medical status, wrote McCafferty.

Tacuri-Tacuri, one of the plaintiffs in the case who suffers from asthma explained his reasons for joining the lawsuit in a statement last week:

“I am bringing this lawsuit because I want to protect not only myself, but the other immigration detainees at the Strafford County Department of Corrections. I am afraid of the coronavirus because I learned from the news that people are infected in detention across the country. I am concerned that the same thing can happen here.” The other plaintiff on the suit, Robson Xavier Gomes, was not granted release at this time.

“Our clients are not detained for criminal activity, but only to await civil immigration action,” said David Vicinanzo, leader of Nixon Peabody’s Government Investigations & White Collar Defense practice and former First Assistant U.S. Attorney for New Hampshire, in a statement on the ACLU of New Hampshire’s website. “This civil detention places them in grave danger in this pandemic. Inevitably, one detainee will contract COVID-19, and the risk of spread throughout the facility is high and potentially lethal.”

According to Attorney Ron L. Abramson of Shaheen and Gordon, securing the release of detainees is time sensitive.

“We can’t confirm rumors that there may or may not be infections at the facility,” he said, adding that “discovery is critical in order to get people’s individual situations before a judge.”

The time sensitive nature of the case, according to Abrahamson, who has been working on immigration cases for twenty two years, can’t be stressed enough.

“The government won’t release prisoners out of the goodness of their heart,” Abrahamson said, adding that, “We’re looking at a tinderbox and we’re trying to get rid of the potential for conflagration.”

Warecki pointed out that Government attorneys have been working with Strafford County to mitigate an outbreak.

“They’re working with the facility,” he said, stressing that, “Our suit is based on the importance of maintaining social distancing and to know who has COVID-19.

An ACLU press release from last week said that the failure to release detainees in Dover: “puts detainees, staff, and the broader community at grave risk of death or serious injury.  The virus is already spreading through correctional facilities across the country with devastating consequences. We are demanding immediate action to stem this outbreak and save lives.”

The conditions at the center that demand release for these inmates, according to the ACLU, include:

Bunk beds placed only two to three feet apart; detainees sharing sinks, toilets, counters, and showers; and communal food service, with many people eating at the same table.

“In light of this crisis and the immense safety concerns we thought we should go ahead,” said Gilles Bissonette, Director for the ACLU in New Hampshire. Bissotte cited the Savino case as one reason for bringing the suit.

“What got our attention was the Savino case in Massachusetts,” he said, referring to another class action lawsuit brought on behalf of detainees at the Bristol County Jail and House of Correction in Dartmouth, Massachusetts.

According to Warecki, what comes next is securing bail hearings for temporary relief for the plaintiffs.