NHAJ recognizes NP with Granite State Advocate Award

BY Nathan Warecki

I am excited to share Nixon Peabody was recognized by the New Hampshire Association of Justice (NHAJ) last week for our work in the Gomes v. Acting Secretary class-action lawsuit. Through dedication and hard workall in the midst of the incredible disruptions caused by the COVID-19 pandemicwe were able to help secure the release of more than two dozen civil immigration detainees from a county jail in Dover, New Hampshire.

Our cross-practice team worked diligently on this pro bono initiative to achieve a tremendous outcome for our clients. Our advocacy reduced the population at the facility, led to a halt of transfers in the facility, and improved conditions for all incarcerated people left at the facility. As a result of our efforts, the NHAJ selected the litigation team for the Granite State Advocate Award, which recognizes attorneys in New Hampshire who initiate positive civil justice reforms while representing their clients.

This case, like others filed by civil justice advocates nationwide, emanated from the COVID-19 pandemic. At the onset of the outbreak, my colleagues and I realized that congregate environments, like jails and nursing homes, were ticking time bombs for spread of the coronavirus which causes COVID-19. We also became aware that the Strafford County House of Corrections, the facility which houses civil immigration detainees in northern New England, was either unable or unwilling to depopulate the facility or enact necessary safety measures. The facility placed civil immigration detainees, all held for immigration infractions rather than service of criminal sentences, in grave danger amid the pandemic: food service was communal, they slept in either crowded bunk rooms or shared cells where social distancing was physically impossible, and they shared many common areas. Even more startling, the detainees were placed on 22-hour lockdown, transforming their civil detention into punitive and unlawful incarceration.

In April 2020, we filed a lawsuit on behalf of three named plaintiffs, together with the ACLU of New Hampshire and four regional law firms, in the New Hampshire federal district court, seeking the immediate release of all detainees to prevent the spread of the coronavirus and other relief designed to mitigate the dangers posed by COVID-19.

We argued the county jail could not adequately prevent the spread of COVID-19 among the detained population. Conditions there were not only inhumane, but also in violation of the Fifth Amendment to the U.S. Constitution. The detainees were not being held on criminal charges, and the government could have pursued safer alternatives. Because authorities refused to make urgent, necessary changes to their operations, we called on the court to intervene.

Our case prevailed: The court certified our proposed class of civil immigration detainees housed at the facility and found that medically vulnerable detainees were in fact eligible for bail for the duration of the case. The court confirmed the Strafford County Department of Corrections and U.S. Immigration and Customs Enforcement (ICE) should have immediately identified detainees whose comorbidities placed them at high-risk if they contracted COVID-19 and concluded that their failure to do so was a constitutional violation. The court also found the facility failed to take reasonable steps to mitigate the known risk that COVID-19 presents to these individuals, and was only compelled to do so by the filing of our lawsuit.

Because of the ruling, ICE released approximately two dozen medically vulnerable detainees. Our lawsuit also prompted ICE and the jail to improve conditions going forward.

We achieved substantial changes to the county jail and necessary relief for our clients. On a broader scale, the opinions issued by the court more clearly defined the process due to civil immigration detainees, and will help establish a framework for civil immigration detainees to vindicate their rights in the future. I am incredibly proud of our team, which also includes partners Dan Deane, Scott O’Connell, and David Vicinanzo; associates Colin Missett, and Michael Strauss, paralegal Sharon Willier, and practice assistants Cheryl Noonan and Cheryl Grijalva.

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Nathan Warecki


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