Case: 1:20-cv-00789-DAP Doc #: 34 Filed: 04/18/20 1 of 5. PageID #: 591

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROMEL AMAYA-CRUZ, et al.,
Plaintiffs-Petitioners,
vs.
REBECCA ADDUCCI, Detroit District
Field Office Director, U.S. Immigration &
Customs Enforcement, et al.,
Defendants-Respondents.

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CASE NO. 1:20 CV 789
JUDGE DAN AARON POLSTER
OPINION AND ORDER

On Friday, April 10, 2020, Plaintiffs filed a Petition for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 and Complaint for Injunctive and Declaratory Relief, Doc #: 1, and Motion
for Temporary Restraining Order (“First TRO Motion”), Doc #: 2.1 Plaintiffs state they are four
“medically vulnerable ICE detainees, three of whom are confined to the Geauga County Jail and
one to the Seneca County Jail, who seek safe and immediate release based on their risk or serious
harm or death if exposed to COVID-19.” Doc #: 2 at 1. Although there is no evidence that
anyone, staff or detainees, at these two jails has the virus, it is now common knowledge that
25% of people who are carrying the virus are asymptomatic. Thus, given the unique nature of
this pandemic and absent testing, there is nothing short of immediate release to ensure that
certain high-risk detainees, such as Plaintiffs, are not exposed to the virus.

1

Plaintiffs subsequently filed an Amended Petition and TRO Motion that added 6 more
ICE detainees. Respectively, Doc ##: 15, 16. That is why the Court will to refer to Doc #: 2 as the
First TRO Motion. A hearing is scheduled on the Second TRO Motion on April 24, 2020.

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On April 14, 2020, Defendants filed a response brief stating they “acknowledge that the
spread of COVID-19 may be an acute possibility in the correctional context,” but note that these
facilities are implementing additional, aggressive prevention measures based on CDC guidelines.
Doc #: 17 at 2. Furthermore, granting Plaintiffs’ requested relief based on the possibility that a
detainee may catch the virus in a facility where the virus is not currently present “would provide
grounds to release a large majority of detainees in ICE custody.” Id. at 2-3.
On April 15, 2020, the Court held a Telephonic Hearing on the First TRO Motion. At
that time, the Court determined that three of the Plaintiffs had not demonstrated they were at
high risk of developing COVID-19; therefore, there was no basis for emergency relief and the
Court denied the First TRO Motion as to those Plaintiffs.2 Doc #: 26 at 3. With respect to
Plaintiff Romel Amaya-Cruz, however, the Court observed that he appeared to be a particularly
high-risk individual who would be susceptible to serious illness or death if exposed to the virus.
Id. at 2. Thus, the Court reserved ruling as to Amaya-Cruz, directed counsel to confer and
determine whether they can agree on conditions that could be imposed upon Romel if released,
and directed them to file a report on the status of their discussions on April 17, 2020. Id. at 2.
The Court has now reviewed the status report. Doc #: 29. Defendants assert that ICE
Enforcement and Removal Operations (“ERO”) has again reviewed Amaya-Cruz’s records to
determine whether his current health status amidst this pandemic makes him suitable for release
with appropriate conditions. They have concluded that his HIV status alone does not compel the
conclusion that he is being held in conditions that meet the deliberate-indifference standard
necessary to state a Fifth Amendment claim. Thus, he should not be released at this time. Id.

2

Those Plaintiffs are Jonas Mbonga, Elvira Pascalenco, and Hector Manuel Reyes Cruz.

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Defendants quote the CDC Guidelines as the barometer for assessing people at risk or
who may need to take extra precautions with regard to COVID-19:
Are people with HIV at high risk for COVID than other people?
At the present time we have no specific information about the risk of COVID-19
in people with HIV.
Older adults and people of any age who have a serious underlying medical
condition might be at high risk for severe illness, including people who are
immunocompromised. The risk for people with HIV getting very sick is greatest
in:
-People with a low CD4 cell count, and
-People not on HIV treatment (antiretroviral therapy or ART).
People with HIV can also be at increased risk of getting very sick with COVID19 based on their age and other medical conditions.
Doc #: 29 at 3 (citation omitted). Defendants state that Amaya-Cruz does not have a low CD4
count; he is taking antiretroviral medications at the Geauga facility; and his HIV is stable. Id.
Further, “according to the CDC, his HIV diagnosis alone may not necessarily put him at high
risk for complications from COVID-19.” Id. (emphasis added). Finally, “his medical issues are
being treated and managed at the Geauga facility.” Id.
The record shows, and Defendants do not dispute, that in addition to Amaya-Cruz’ HIV
status, he suffers brain lesions (bleeding on the brain), toxoplasmosis (a parasitic infection), and
toxoplasmosis encephalitis (swelling of the brain caused by toxoplasmosis). Doc #: 2 at 6. He
suffers chronic headaches and neck pain. Id. And while Amaya-Cruz’s CD 4 cell count is
within normal range, the record shows that since entering the Geauga facility, he has had a
heightened level of HIV present in his body. Id. He states that is impossible to maintain
adequate social distance in the facility and in the last two weeks, numerous people have been

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 Case: 1:20-cv-00789-DAP Doc #: 34 Filed: 04/18/20 4 of 5. PageID #: 594

transferred into and out of his pod–some of whom have coughs and all of whom are relegated to
the general population. Doc #: 2-5 ¶ 7.
As Defendants have repeatedly pointed out, Amaya-Cruz’ HIV status alone does not
necessarily put him at high risk for complications from COVID-19, and people with HIV can be
at increased risk of getting critically ill with the virus based on their age and other medical
conditions. Amaya-Cruz is not just HIV-positive; he has a panoply of conditions that render him
severely immunocompromised. Social distancing is perhaps the most important way to keep the
virus from spreading, and though the J-dorm where Amaya-Cruz resides at the Geauga facility is
at 50% capacity, all agree it is nearly impossible to maintain safe social distancing in the
correctional context. Finally, at the April 14 Hearing, Defendants stated that of the 480 ICE
detainees in Ohio and Michigan, 75 to 80 people have been identified as high-risk persons for
ERO review, but only a handful have been released.
The Court, having reviewed the record, concludes that keeping Amaya-Cruz in detention
during the COVID -19 pandemic with his severely tenuous, immunocompromised health,
violates the Fifth Amendment. Accordingly, the Court GRANTS the First TRO Motion as to
Romel Amaya-Cruz with the following conditions:
Romel Amaya-Cruz must stay with his sister who resides in Cleveland and selfquarantine in her residence for 14 days. Furthermore, he may not drive any vehicle. Should he
abscond from his sister’s residence and/or appear for his immigration hearing scheduled on April
29, 2020 or any future hearings, he will be deemed to have forfeited his asylum claim and any
right to contest immediate removal from the country.

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Defendants concede that Amaya-Cruz is at high risk of contracting COVID-19 but that he
needs to be detained because he is a danger to the community. He is a danger to the community
because of two DUI convictions he received ten years ago. Defendants also contend that he is a
flight-risk due to his repeated illegal re-entries into the country. However, he has immigration
counsel who is currently representing him so that he may eventually stay in Cleveland with his
family. The aforementioned conditions address these concerns. Moreover, everything possible
should be done to release high-risk persons from penal institutions at this unique time, both to
protect them, the remaining detainees, and the staff.
IT IS SO ORDERED.

/s/ Dan A. Polster April 18, 2020
Dan Aaron Polster
United States District Judge

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