The first email to Dallas trial lawyer Paul Genender arrived March 31 at 8:31 p.m.
The American Civil Liberties Union needed urgent legal help representing four migrant detainees being held in an immigration detention facility north of Houston. All four were in bad health and risked much worse due to COVID-19.
Within 26 minutes, Genender and his firm, Weil, Gotshal & Manges, put together a team of four lawyers to jump on the pro bono case. A co-counsel agreement needed to be drawn and signed. Facts needed to be collected. The law needed to be researched. A writ of habeas corpus and a petition for a temporary restraining order needed to be drafted and filed. A new legal precedent needed to be established.
The life of four people depended on it.
Seventeen days later, a judge in Houston issued a first-of-its-kind decision for the federal courts within the U.S. Court of Appeals for the Fifth Circuit and three of the four detainees were freed.
“This was one of the most rewarding experiences I’ve had in my career as a lawyer,” Genender told The Texas Lawbook in an exclusive interview Sunday. “We helped people immediately.”
The case, officially called RVB v. Chad Wolf and U.S. Immigration and Customs Enforcement, is the claim of four separate migrants – two from Guatemala, one from Mexico and one from Jordan – being held at ICE’s Montgomery Processing Center (MPC) in Conroe who said their preexisting medical conditions put them in grave danger of being infected with the coronavirus as long as they were being incarcerated.
The federal government argued that the federal courts have no authority to grant the inmates habeas corpus and should not do it even if the judge did have jurisdiction.
But April 17, U.S. District Judge Keith Ellison of the Southern District of Texas ruled he does have the authority and he decided to use it.
“Because the plaintiffs challenge the validity of their continued confinement and because plaintiffs seek immediate release from confinement, plaintiffs’ claims were properly 28 U.S.C. 2241 (the federal habeas corpus statute) and the court has jurisdiction to rule on plaintiffs’ petition for habeas corpus,” Judge Ellison wrote in a 17-page opinion.
“The court is aware that, in most cases, unconstitutional conditions of confinement can be remedied through injunctions that require abusive practices be changed,” the judge continued. “However, the current case is not one where such injunctive relief is available.
“We are living in unprecedented times,” Judge Ellison wrote.
The case got its start when Genender, a partner in the Dallas office of Weil, received an email at 8:31 p.m. from the firm’s pro bono coordinator in New York. The ACLU was aware that the four detainees were fearful of dying from COVID-19.
The four migrants suffered from specific preexisting medical conditions that made them particularly susceptible to catching the virus, which would almost surely kill them if they did. To make matters worse, an employee at the detention facility had just tested positive for COVID-19.
MPC holds more than 830 detainees and is operated by a private company called GEO Group, which is a publicly traded real estate investment trust based in Boca Raton, Florida.
Genender and his litigation team had been working at home for two weeks when the email regarding the case arrived.
8:38 p.m.: Genender responded to the pro bono coordinator that he would contact members of his team to gauge their interest.
8:39 p.m.: The Weil litigation leader emailed his group about the case.
8:40 p.m.: Weil litigation associates Ron Miller and Jenae Ward responded immediately that they were volunteering.
8:45 p.m.: Rene Mai replied that she wanted to help.
8:57 p.m.: Genender notified the ACLU that Weil had a team that was ready to tackle the case.
“Every human being deserves, no matter their circumstances, the right to be safe,” Genender said. “If the legal system affords them an ability to help them be safe, we should do it. Ron raised his hand first and I wanted him to run point with the ACLU.”
The ACLU lawyer working on the litigation was Kathryn Huddleston, who years earlier had been a Weil Gotshal pro bono fellow.
The ACLU had filed similar lawsuits in other jurisdictions but none in the Fifth Circuit.
Over the next eight days, the lawyers at Weil and ACLU had numerous conference calls and meetings on Zoom.
“We had to develop a strategy on how to get evidence and get interviews,” Miller said. “We researched the law in the Fifth Circuit and obtained affidavits and declarations from the ACLU’s cases in other jurisdictions.”
Genender got Weil senior paralegal Sharron Morris to help with legal research.
“There are very few documents that go out from us that don’t have Sharron’s fingerprints all over them,” he said.
On Wednesday, April 8, Weil and the ACLU filed the petition for habeas corpus.
“The four people who bring this lawsuit cannot retreat to safety,” the petition stated. “They live, sleep, shower, eat and wash their hands close to other people – sometimes up to 80 other people. They have no face masks. They do not even always have soap.
“Yet they are precisely the people who most urgently need protection from the pandemic. They are highly vulnerable to serious illness and death from COVID-19 due to their preexisting medical conditions,” the complaint stated. “Keeping vulnerable detainees in an environment in which social distancing and the necessary hygiene measures are impossible and waiting for COVID-19 to explode at MPC creates not only a humanitarian crisis but also a constitutional one.”
Weil and the ACLU argued that the U.S. Constitution “forbids the government from allowing the people in custody to suffer and die from infectious disease.” They said their clients should be released because MPC officials could not make physical changes to ensure the safety of the four detainees.
A few days after the lawsuit was filed, ICE released two of the detainees – a 58-year-old Mexican man who suffers from diabetes, asthma, sleep apnea and low blood oxygen levels, and a 34-year-old man from Guatemala was has been diagnosed with a chronic respiratory illness due to underdeveloped lungs resulting from a premature birth.
Judge Ellison set oral arguments for the other two migrants for April 14: a 28-year-old Guatemalan woman who has lived in Houston since she was three years old and was diagnosed with being medically obese and has an elevated risk for COVID-19 and a 37-year-old Jordanian man who suffers from high blood pressure and has difficulty breathing, chest pain and shortness of breath.
For more than 45 minutes, the two sides laid out their arguments to Judge Ellison.
Annalisa L. Cravens, an assistant U.S. Attorney in Houston, argued that the Fifth Circuit does not permit “conditions-of-confinement claims” to be brought as a habeas petition and that the defendants were held under “mandatory detention statutes,” which bars habeas relief from courts.
The government also argued that officials at MPC could take steps to ensure the health and safety of the plaintiffs.
Genender countered that the U.S. Constitution “forbids the government from allowing the people in custody to suffer and die from infectious disease.” He said their clients should be released because MPC officials were not able to make physical changes that allowed the four detainees to be safe from COVID-19.
Judge Ellison issued his order April 17, stating that the defendants “present no case law that asserts that detention statutes strip courts of habeas corpus jurisdiction.”
“The question of COVID-19 spreading in MPC is not one of if, but when,” the judge wrote.
Judge Ellison said ICE has numerous other means to ensure that the plaintiffs appear at their immigration court hearings other than detention.
That being said, Judge Ellison only ordered that the 28-year-old Guatemalan woman be freed because she had committed no violent crimes. He said the 37-year-old Jordanian man has been indicted for aggravated sexual assault and is thus a high risk to flee. He was ordered to remain in custody.
“This was a wonderful opportunity to use my law license to do good and make a difference in people’s lives,” Miller said.
Genender said this case is a “shining example” of how the justice system should work.
“This is not the last time you will hear from Weil on this issue,” Genender said. “We are looking into helping others similarly situation. This was not a one-stop effort.”