A federal magistrate has recommended against releasing dozens of Minnesota immigrant detainees who argued that their incarceration during the COVID-19 pandemic amounted to cruel and unusual punishment.

The inmates filed the petition in late March alleging that Sherburne County jail, the state’s largest immigrant detention facility, would serve as a perfect incubator and transmitter for the deadly virus if inmates were to become infected. Dubbed the “Sherburne 62” by supporters, the group asked a federal judge to grant them release to home monitoring pending their court dates.

On Tuesday, U.S. Magistrate Elizabeth Cowan Wright found they “failed to show they are more likely than not to suffer imminent and irreparable harm if they remain in detention.” They also didn’t demonstrate they could effectively isolate if released. And they didn’t prove the jail was acting with “deliberate indifference” to the detainees’ safety, “especially where there is no indication that COVID-19 is presently within the facility.”

“That said, the Court shares Petitioners’ concerns regarding the risk that COVID-19 presents to them during their detention at [the jail],” Wright wrote. “The Court recognizes that what is known and understood about the COVID-19 pandemic, as well as the conditions within [the jail], is constantly evolving, and that there may be subsequent facts established as to those conditions and an individual Petitioner’s health and proposed release plan that could tip the balance differently.”

Frederick J. Goetz, attorney for the detainees, said he will file an objection to Wright’s recommendation on Friday. The case then goes to U.S. Judge Nancy Brasel, who will issue an independent final ruling.

Nationwide battle

Since the pandemic hit the United States, battles have been raging across the country over how U.S. Immigration Customs and Enforcement detention facilities should react.

In California, a federal judge has ordered ICE to identify and consider releasing detainees at high risk for the virus.

There are more than 30,000 ICE detainees in the United States. So far, ICE has confirmed 425 infections, out of 705 tested, none of which are in Minnesota.

ICE has released more than 700 people after evaluating their immigration history, criminal record, potential threat to public safety, flight risk and national security concerns, according to ICE data.

In a telephone hearing last week, Goetz said there is no way the jail can eliminate risk, particularly for those with pre-existing medical conditions. The jail has no testing capacity.

If the virus reaches Sherburne, it could spread rapidly, and the surge in cases could overwhelm community hospital resources.

“The only way to keep those individuals safe is to get them out of the congregate-living circumstance,” he said.

Homeland Security attorney David Fuller said the Sherburne jail has released inmates to ease jail crowding.

The jail has put inmates in isolated cells and provided them with masks. It’s also taking extra steps to keep the facility sanitized.

“These are extraordinary times,” Fuller said.

“The coronavirus crisis has changed how we do pretty much anything. And in this case … the government has made the safety and concerns of these detainees a first priority.”

Reached for comment Wednesday, Goetz said his clients “respectfully disagree” with Wright’s conclusion. Especially for the high-risk detainees, he said, “waiting for there to be a confirmed case of COVID-19 in the Sherburne County jail before finding a serious risk of irreparable harm will be too late.”